U.S.
v.
TON

United States Court of Appeals, Ninth CircuitMar 4, 2011
418 Fed. Appx. 631 (9th Cir. 2011)

No. 09-10443.

Argued and Submitted September 10, 2010.

Filed March 4, 2011.

Erika R. Frick, Laurie K. Gray, Esquire, Assistant U.S., Office of the U.S. Attorney, San Francisco, CA, for PlaintiffAppellee.

Manuel Urquidez Araujo, Assistant Federal Public Defender, Mara Kapelovitz Goldman, Federal Public Defender's Office, San Jose, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, District Judge, Presiding. D.C. No. 5:08-cr-00607-RMW-1.

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Appellant-Defendant Ahn That Ton (Ton) appeals the district court's imposition of a 48-month and one day sentence. Ton asserts that the district court erred when it imposed an additional criminal history point pursuant to U.S.S.G. § 4A1.1(e) after concluding that Ton committed part of the instant offense less than two years after release from imprisonment. Ton also argues that his sentence is substantively unreasonable.

U.S.S.G. § 4A1.1(e) provides for the addition of one criminal history point to the criminal history category of an offender who "committed the instant offense less than two years after release from imprisonment . . ." U.S.S.G. § 4A1.1(e). Ton argues that the district court erred when it imposed an additional criminal history point because the government stipulated that the conspiracy ended in February, 2006, prior to his release from prison. Because the parties' stipulations do not bind a district court at sentencing, see United States v. Chaney, 581 F.3d 1123, 1124-25, 1127 (9th Cir. 2009), Ton's argument lacks merit.

In reviewing a sentence for substantive reasonableness, we reverse only "if upon reviewing the record, we have a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon weighing the relevant factors." United States v. Edwards, 595 F.3d 1004, 1015 (9th Cir. 2010) (citation omitted). The district court decided that a downward departure was warranted after considering the mitigating and aggravating circumstances in Ton's case. That consideration was exactly the type the district court was required to make under 18 U.S.C. § 3553. See 18 U.S.C. § 3553(a). Because the sentence imposed "rested on a reasoned basis and relied upon factors within [the court's] discretion," the sentence imposed was not substantively unreasonable. Edwards, 595 F.3d at 1018; see also United States v. Bendtzen, 542 F.3d 722, 729 (9th Cir. 2008) (concluding that a "below-Guidelines Sentence, supported by the district court's specific reasoning, is reasonable") (citation omitted).

AFFIRMED.