NOT FOR PUBLICATION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

Plaintiff

- Appellee,

v. MARK ARNESON,

Defendant

- Appellant. No. 17

- 50396
D.C. No. 2:05

- cr - 01046

- DSF

- 7

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Submitted February 11, 2019 ** Pasadena, California Before: D.W. NELSON, CALLAHAN, and OWENS, Circuit Judges. Mark Arneson ap peals from his sentence imposed on remand for his convictions for violation of the Racketeer Influenced Corrupt Organizations Act (“RICO”), RICO conspiracy, honest

- services wire fraud, and identity theft. We previously affirmed Arneson’s foregoing convict ions, vacated his other

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

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

FEB 13 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

convictions, and remanded for resentencing. See United States v. Christensen , 828 F.3d 763 , 776 (9th Cir. 2015); United States v. Christensen , 624 F. App’x 466 , 473

- 74 (9th Cir. 2015). As the parties are familiar with the facts , w e do not recount them here. We review a district court’s interpretation of the Sentencing Guidelines de novo, its application of the Guidelines to the facts for abuse of discretion, and its factual findings for clear error. Christensen , 828 F.3d at 815. We affirm. Arneson argues that his 121

- month sentence is substantively unreasonable because the district court’s six

- level upward departure under U.S.S.G. § 5K2.0 : (1) was based on impermissible double counting; (2) was based on insufficient factual findi ngs of obstruction; and (3) created an unwarranted sentencing disparity. See id. at 819 ( considering an upward departure under § 5K2.0 “as part of

. . . a sentenc e ’s substantive reasonableness , ” which is reviewed for abuse of discretion). We are not persuaded. First, the district court did not engage in impermissible double counting by imposing both a six

- level departure under § 5K2.0 and a two

- level enhancement for obstruction of justice under § 3C1.1 . Contrary to Arneson’s characterization, the six

- level departure under § 5K2.0 was based not only on Arneson’s obstruction, but also on other factors such as his breach of public trust and harm to the victims. Moreover, to the extent that the district court relied on Arneson’s3

obstruction for the six

- l evel departure under § 5K2.0, the district court did not abuse its discretion in determining that this case was substantially more egregious than ordinary cases of obstruction. See U.S.S.G. § 5K2.0 ( Nov. 2001) (providing that where “the applicable offense guideline and adjustments do take into consideration a factor listed in this subpart, departure from the applicable guideline range is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense”); United States v. Ward , 914 F.2d 1340, 1348 (9th Cir. 1990) (stating that a district court may depart upward under § 5K2.0 to address obstruction that is “ significantly more egregious than the ordinary cases of obstruction liste d in the applicati on notes to § 3C1.1, of which the Commission has taken full account ”). Second, t he record shows that the district court made sufficient factual findings of obstruction to support t he six

- level upward departure under § 5K2.0

. Cont rary to Arneson’s contentions, t he district court did not clearly err in finding that Arneson’s testimony regarding bankruptcy and being on a plane was perjurious. See United States v. Jimenez , 300 F.3d 1166, 1170 (9th Cir. 2002) (stating that a district court’s determination that the defendant “obstructed justice is a factual f inding reviewed for clear error ” ). Finally, the six

- level upward departure did not create an unwarranted sentencing disparity. See 18 U.S.C. § 3553(a)(6) (stating that a court should4

consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct ”). For example, the district court did not clearly err in finding that Arneson was not similarly situated to co

- defendant Craig Stevens. See United States v. Ressam , 679 F.3d 1069, 1094

- 95 (9th Cir. 2012) (en banc) ( stating that co - defendants who engaged in lesser acts, were convicted of different crime s, or pled guilty were not appropriate comparis ons under § 3553(a)(6)). In sum, Arneson’s 121

- month sentence is substantively reasonable and the district court did not abuse its discretion by imposing it.
AFFIRMED

.