United States v. Kdb, Juvenile Male ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JAN 06 2017
UNITED STATES OF AMERICA, No. 16-10023 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff-Appellee, D.C. No.
3:11-cr-08051-SRB-1
v.
KDB, Juvenile Male, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted December 13, 2016**
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,*** District Judge.
Defendant KDB appeals the 17-month sentence imposed by the district court
upon the third revocation of his supervised release. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
We review sentencing decisions for abuse of discretion. United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). But, "[w]hen a defendant does
not raise an objection to his sentence before the district court," we review for plain
error. United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009). Because
our decision would be the same under either standard, we need not decide which
standard applies.
1. The district court did not fail to "state the specific reason for imposing a
sentence that differs from the recommended range." United States v. Miqbel, 444
F.3d 1173, 1179 (9th Cir. 2006). Although the court did not specify the Guidelines
range during the disposition hearing, the court and both parties discussed a
probation report that set forth the correct revocation range of 3 to 9 months’
imprisonment, and both parties advocated for sentences above that range. The
court also gave specific reasons for not imposing a shorter sentence, principally
Defendant’s repeated failure to undergo court-ordered substance abuse treatment
and his history of absconding while on supervised release.
2. Contrary to Defendant’s argument, the district court did not
impermissibly premise its sentencing decision "on a fact that had never been
established: [Defendant’s] continuing use of alcohol." See Carty, 520 F.3d at 993(noting that it is procedural error "to choose a sentence based on clearly erroneous
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facts"). At the disposition hearing, defense counsel repeatedly acknowledged
Defendant’s substance abuse problems. And the record provides other ample
support for finding that Defendant had ongoing substance abuse problems,
including that each of his revocations of supervised release, as well as his initial
revocation of pretrial release, involved substance abuse issues.
3. Finally, the district court did not violate this court’s directive "that the
disposition imposed [be] the least restrictive means to accomplish a young person’s
rehabilitation, given the needs of the child and the community." United States v.
Juvenile, 347 F.3d 778, 787 (9th Cir. 2003). Following Defendant’s three previous
revocations of release, the court imposed short custodial sentences followed by
supervised release and substance abuse treatment programs, none of which was
successful. The court considered Defendant’s history and the record before
imposing a 17-month sentence. We also reject Defendant’s argument that the court
employed a punitive rather than rehabilitative rationale, given the earlier, less
restrictive sentences, along with the court’s statement imploring Defendant to avail
himself of substance abuse treatment during his confinement.
AFFIRMED.
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