Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief District Judge, Presiding
Submitted December 6, 2006"
Seattle, Washington
Before: B. FLETCHER and MCKEOWN, Circuit Judges, and SCHWARZER,
Senior District Judge
On June 14, 2005, Bruce Sehm pled guilty to one count of making a false
* This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
™ The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
* The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.Page 2 statement on a loan application. The district court sentenced Sehm to 30 months
in prison, a sentence at the low end of the applicable Guideline range. Sehm now
challenges the sentence he received, arguing that 1) the court failed to find facts
that enhanced his sentence beyond clear and convincing evidence, as required by
the disproportionate impact test; 2) he was entitled to an additional one-point
reduction for acceptance of responsibility; 3) the court impermissibly applied the
Guidelines in mandatory fashion; and 4) the sentence imposed by the court was
unreasonable. We reject each of appellant’s arguments and affirm.
With respect to Sehm’s first argument, appellant accurately characterizes the
law, but misstates its application to his case. Ifa factual finding will exert a
disproportionate impact on the ultimate sentence, the district court must establish
that fact by clear and convincing evidence. United States v. Staten, 466 F.3d 708, (9th Cir. 2006). However, Sehm conceded each of the relevant facts in his
supplemental sentencing memorandum and then admitted to them at his sentencing
hearing. Thus, there were no contested facts for the court to find by clear and
convincing evidence.
Sehm next argues that he is entitled to an additional one-point reduction for
his acceptance of responsibility, pursuant to U.S. Sentencing Guidelines Manual, §
3E1.1. According to Sehm, the district court received the authority from UnitedPage 3 Case 3:05-cr-00040-JKS-JDR Documént 62 Filed 01/16/2007 Page 3 of 4
States v. Booker, 543 U.S. 220 (2005), to grant the additional reduction, even
absent a motion from the government. This argument is mistaken. Booker did not
change the manner in which courts calculate Guidelines sentences; it simply
excised the sentencing statutes that made the Guidelines mandatory. /d. at 245.
Appellant also argues that three different Supreme Court cases — Office of
Personnel Management v. Richmond, 496 U.S. 414 (1990), Eastern Extension,
Australia & China Telegraph Co. v. United States, 251 U.S. 355 (1920), and Wade
v. United States, 504 U.S. 181 (1992) — require the district court to grant the
additional reduction. None of these cases provides even tangential support for
appellant’s claim.
Appellant also argues that the district court mistakenly applied the
Guidelines in mandatory fashion. It did not. On the contrary, the district court
explicitly stated that the Guidelines were advisory when considering appellant’s
sentence. Appellant has pointed to nothing in the record that suggests otherwise.
Finally, appellant argues that his sentence is unreasonable. Following
Booker, this Court must consider whether a sentence is both procedurally and
substantively reasonable. United States v. Ameline, 409 F.3d 1073, 1095 (9th Cir.
). In the instant case, the district court gave meaningful consideration to the §
(a) factors and sentenced appellant to the low-end of the applicable GuidelinePage 4 Case 3:05-cr-00040-JKS-JDR Documént 62 Filed 01/16/2007 Page 4 of 4
range. None of Sehm’s arguments suggest that a 30 month sentence was
unreasonable given the facts of this case, or that the district court failed to consider
the appropriate factors. For all of the aforementioned reasons, we affirm the
sentence.
AFFIRMED.Page 5
Case 3:05-cr-00040-JKS-JDR . Document 62 Filed 01/16/2007 Page 2 of 4
statement on a loan application. The district court sentenced Sehm to 30 months
in prison, a sentence at the low end of the applicable Guideline range. Sehm now
challenges the sentence he received, arguing that 1) the court failed to find facts
that enhanced his sentence beyond clear and convincing evidence, as required by
the disproportionate impact test; 2) he was entitled to an additional one-point
reduction for acceptance of responsibility; 3) the court impermissibly applied the
Guidelines in mandatory fashion; and 4) the sentence imposed by the court was
unreasonable. We reject each of appellant’s arguments and affirm.
With respect to Sehm’s first argument, appellant accurately characterizes the
law, but misstates its application to his case. Ifa factual finding will exert a
disproportionate impact on the ultimate sentence, the district court must establish
that fact by clear and convincing evidence. United States v. Staten, 466 F.3d 708,
720 (9th Cir. 2006). However, Sehm conceded each of the relevant facts in his
supplemental sentencing memorandum and then admitted to them at his sentencing
hearing. Thus, there were no contested facts for the court to find by clear and
convincing evidence.
Sehm next argues that he is entitled to an additional one-point reduction for
his acceptance of responsibility, pursuant to U.S. Sentencing Guidelines Manual, §
3E1.1. According to Sehm, the district court received the authority from United
PDF Page 4
Case 3:05-cr-00040-JKS-JDR Documént 62 Filed 01/16/2007 Page 3 of 4
States v. Booker, 543 U.S. 220 (2005), to grant the additional reduction, even
absent a motion from the government. This argument is mistaken. Booker did not
change the manner in which courts calculate Guidelines sentences; it simply
excised the sentencing statutes that made the Guidelines mandatory. /d. at 245.
Appellant also argues that three different Supreme Court cases — Office of
Personnel Management v. Richmond, 496 U.S. 414 (1990), Eastern Extension,
Australia & China Telegraph Co. v. United States, 251 U.S. 355 (1920), and Wade
v. United States, 504 U.S. 181 (1992) — require the district court to grant the
additional reduction. None of these cases provides even tangential support for
appellant’s claim.
Appellant also argues that the district court mistakenly applied the
Guidelines in mandatory fashion. It did not. On the contrary, the district court
explicitly stated that the Guidelines were advisory when considering appellant’s
sentence. Appellant has pointed to nothing in the record that suggests otherwise.
Finally, appellant argues that his sentence is unreasonable. Following
Booker, this Court must consider whether a sentence is both procedurally and
substantively reasonable. United States v. Ameline, 409 F.3d 1073, 1095 (9th Cir.
2005). In the instant case, the district court gave meaningful consideration to the §
3553(a) factors and sentenced appellant to the low-end of the applicable Guideline
PDF Page 5
Case 3:05-cr-00040-JKS-JDR Documént 62 Filed 01/16/2007 Page 4 of 4
range. None of Sehm’s arguments suggest that a 30 month sentence was
unreasonable given the facts of this case, or that the district court failed to consider
the appropriate factors. For all of the aforementioned reasons, we affirm the
sentence.
AFFIRMED.
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