United States v. Manish Sharma , 700 F. App'x 678 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10027
Plaintiff-Appellee, D.C. No. 3:10-cr-00116-HDM
v.
MEMORANDUM*
MANISH SHARMA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Manish Sharma appeals from the district court’s judgment and challenges
the eight-month sentence imposed upon revocation of supervised release. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Sharma contends that the district court violated the prohibition against
*
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).
double jeopardy by imposing the eight-month sentence based, in part, on two
positive drugs tests for which he had already been sanctioned with three days in
jail. We review for plain error. See United States v. Teague, 722 F.3d 1187, 1190
(9th Cir. 2013). Even assuming the district court erred, Sharma has not shown that
the error affected his substantial rights. Id. at 1192-93.
Sharma also contends that the district court procedurally erred by failing to
consider the need to promote rehabilitation and by relying on unsupported
assumptions regarding his drug-related conduct when deciding what sentence to
impose. We review for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010), and conclude that there was none. The record
reflects that the district court considered Sharma’s capacity for rehabilitation but
concluded that, in light of his drug relapse, a term of imprisonment was necessary
in order to protect the public. Moreover, Sharma has not shown that the district
court relied on any clearly erroneous facts in imposing the sentence. See United
States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010) (“A finding is clearly
erroneous if it is illogical, implausible, or without support in the record.”). Finally,
the eight-month, within-Guidelines sentence is substantively reasonable in light of
the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances.
See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 17-10027