United States v. Juan Olibas-Valenzuela

Nov 22, 2010
10-50175
Versions:404 F. App'x 213

Christopher Seth Askins, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Timothy Robert Garrison, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.

Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.

MEMORANDUM **

David Casas-Herrera appeals from the 10-month sentence imposed following revocation of his supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Casas-Herrera contends that the sentence is unreasonable because the district court procedurally erred in failing to adequately address his mitigating arguments and explain the reasons for imposing a 10-month sentence. The record reflects that the district court did not procedurally err. See Rita v. United States, 551 U.S. 338, 358-59 (2007). The record also reflects that, under the totality of the circumstances, Casas-Herrera‘s sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51-52 (2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

AFFIRMED.

Bruce R. Castetter, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Sean Coyle, Office of the U.S. Attorney, Daniel Earl Zipp, Assistant U.S. Office of the U.S. Attorney Erick L. Guzman, Esquire, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.

Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.

MEMORANDUM **

Juan Olibas-Valenzuela appeals from the 12-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Olibas-Valenzuela contends that the supervised release revocation procedures set forth in 18 U.S.C. § 3583(e)(3) violate Apprendi v. New Jersey, 530 U.S. 466 (2000) and United States v. Booker, 543 U.S. 220 (2005). As Olibas-Valenzuela concedes, this contention is foreclosed by United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008), and United States v. Huerta-Pimental, 445 F.3d 1220, 1225 (9th Cir. 2006).

Olibas-Valenzuela further argues that the district court procedurally erred by failing to calculate and consider the applicable advisory Guidelines range. The record reveals that the district court committed a significant procedural error because it did not calculate the advisory Guidelines range, and neither the parties nor the probation office identified the applicable range. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Denton, 611 F.3d 646, 651 (9th Cir. 2010). The Government has not met its burden of showing that the error was harmless; therefore, we vacate the sentence and remand for resentencing. United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (stating that this court “will remand non-harmless procedural errors“).

Because the district court‘s failure to calculate the advisory Guidelines range requires remand for resentencing, it is unnecessary to address Olibas-Valenzuela‘s remaining claims of procedural error at sentencing.

VACATED and REMANDED for resentencing.

Notes

*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.