NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ARLAN WESLEY HARRELL, AKA Fritters, AKA Kronos, AKA Soole, AKA The Dread King,

Defendant

- Appellant. No. 22

- 50035
D.C. No. 2:17

- cr - 00404

- AB

- 1

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding Argued and Submitted April 14, 2023 Pasadena, California Before: W. FLETCHER, BERZON, and LEE, Circuit Judges. Arlan Harrell appeals from the district court’s order sentencing him to life in prison for child exploitation, production of child pornography, and possession of child porn ography. H e argues that his constitutional rights were violated at sentencing because (1) the district court impermissibly based its sentencing decision

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAY 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

on unreliable information from a victim impact statement and (2) the government
and the victim s’ paren ts used harsh language to describe him. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 3742 (a) , and
we affirm the district court. Because Harrell did not object while the sentencing proceedings were underway, we review his claims for plain error. See United States v. Vanderwerfhorst , 576 F.3d 929, 934 (9th Cir. 2009).
1. The district court did not violate Harrell’s rights by impermissibly rely ing on a victim impact statement in which the mothe r of two of Harrell’s victims suggest ed that Harrell i s a psychopath who i s likely to recidivate. To establish that
a district court inappropriately rel ied on unreliable information in sentencing , the
defendant must show that th e unreliable information “ d emonstrably made the basis for the sentence.” Id. at 935

– 36 (quoting United States v. Ibarra , 737 F.2d 825, 827 (9th Cir. 1984)). W e presume that a sentencing judge reviewing victim impact statements “applied the law . . . and considered only evidence th at he knew was
admissible

. ” Rhoades v. Henry , 638 F.3d 1027, 1055 (9th Cir. 2011). In this case, t here is insufficient evidence to overcome the presumption that the district court disregarded any unreliable information in the mother’s victim impact statement. See id. The district court never mentioned the mother’s
recidivism

- related statements when explaining its decisi on to impose a life sentence. Although the mother and district court both described Harrell as “manipulative,”3

there is nothing notable about their common use of the term, as there was significant evidence that Harrell’s behavior was manipulative and the word “manipulative” is
not a term of art. And the district court expressed uncertainty about Harrell’s rehabilitation prospects both before and after the mother spoke, suggesting that the mother’s statements did not affect the district court’s assessment of this issue.
Harrell ’s alternative argument that he did not receive adequate notice of the mother’s statements ( as required by Federal Rule of Criminal Procedure 32 ) also
fails because the mother’s statements were fully disclosed “in open court at the

se ntencing hearing

. ” See United States v. Baldrich , 471 F.3d 1110, 1114

– 15 (9th Cir. 2006). And Harrell had a meaningful opportunity to challenge her statement s,

as the district court gave him the chance to make objections after the victim impact

statement s were completed.
2. The harsh language used during the sentencing proceedings did not violate Harrell’s constitutional rights. V ictim impact statements are “admissible at sentencing unless their admission would be ‘so unduly prejudicial that it renders the sentence fundamentally unfair. ’ ” Beaty v. Stewart , 303 F.3d 975, 985 (9th Cir. 2002) (quoting Gretzler v. Stewart , 112 F.3d 992, 1009 (9th Cir. 1997))

. I mproper language from the government violates a defendant’s rights only where it “ so infe cted the [sentencing proceedings] with unfairness as to make the resulting [ sentence ] a denial of due process.” Allen v. Wood ford , 395 F.3d 979, 101 5 (9th Cir.4

2005) (quoting Darden v. Wainwright , 477 U.S. 168 , 181 (1986)). Absent evidence
to the contrar

y, w e presume that sentencing judges know the law and consider only
admissible evidence. See Rhoades , 638 F.3d at 1055; see also Hurles v. Ryan , 752 F.3d 768, 783 (9th Cir. 2014) ; United States v. Carty , 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Althou gh the government and victims’ parents used strong language at times
to describe Harrell and some parents expressed a desire for vengeance against him , no evidence suggests that the harsh language sway ed the district court

. See id. The district court never used dehumanizing language to describe Harrell , and it gave no indication that it overlooked any mitigating circumstances. Its expression s of sympathy for the victims’ parents do not suggest that the district court shared the
pa rents’ desire for vengeance against Harrell. In sum, nothing in the record disturbs the presumption that the district court properly applied the law in its sentencing decision, notwithstanding the strong language from the victims’ parents and the
governme nt. Nor d id any error arise from the fact that the victim impact statements extended beyond describing the impact of Harrell’s crimes to opine on his personal characteristics and the appropriate punishment

. Although the Eighth Amendment prohibit s a victim ’s family members from commenting on “the crime, the defendant, and the appropriate sentence” in a death

- penalty case, Bosse v. Oklahoma , 580 U.S.5

1, 3 (2016), this rule applies only in the capital context. See Booth v. Maryland , 482 U.S. 496, 509 n.12 (1 987), overruled on other grounds by Payne v. Tennessee , 501 U.S. 808 (1991). V ictim impact statements are meant “to force the defendant to confront the human cost of his crime,” Kenna v. U.S. Dist. Ct. , 435 F.3d 1011, 1016 (9th Cir. 2006), and it is unavoidable that some victims will use charged language against the defendant in doing so . We have recognized that such language is admissible “as a reflection of the anguish [the crime] caused.” See Gretzler , 112 F.3d at 1009. Thus, the strong lang uage used during Harrell’s sentencing proceedings did not violate hi s rights , given that there is no evidence that it
i nfluenced the district court

. AFFIRMED.