United States v. James Hermosillo ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50248
Plaintiff-Appellee, D.C. No. 2:08-cr-00713-DSF-42
v.
MEMORANDUM*
JAMES HERMOSILLO, AKA Bones, AKA
James Francis Jesse Hermosillo, AKA Seal
V,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
James Hermosillo appeals from the district court’s judgment and challenges
the 15-year term of supervised release imposed following revocation of his
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hermosillo contends that the district court procedurally erred by failing to
(1) calculate the Guidelines range applicable to the supervised release term;
(2) address his sentencing arguments; and (3) adequately explain its reasons for
reimposing the 15-year term of supervised release. We are not persuaded by the
government’s argument that Hermosillo waived his right to make these arguments,
see United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc) (“[W]aiver
is the intentional relinquishment or abandonment of a known right.” (internal
quotation marks omitted)), and instead review his claims for plain error. See id.The district court did not plainly err because Hermosillo has not shown a
reasonable probability that he would have received a different supervised release
term had the district court expressly calculated the Guidelines range applicable to
supervised release or said more to justify the term or to address Hermosillo’s
arguments, which were entirely directed to the custodial term. See United States v.
Dallman, 533 F.3d 755, 762 (9th Cir. 2008). The district court’s remarks during
the revocation hearing reflect the same concerns its expressed at Hermosillo’s
original sentencing, when it rejected the parties’ joint request for a 4-year
supervised release term in favor of a 15-year term. Because Hermosillo’s multiple
violations of supervised release following his release only validated those
concerns, we see no reasonable probability that the court would have imposed a
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shorter supervised release term absent the alleged errors. 1
Hermosillo also argues that his supervised release term is substantively
unreasonable. The district court did not abuse its discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). The 15-year term is substantively reasonable in
light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the
circumstances, including Hermosillo’s multiple breaches of the court’s trust. See
id.; United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007) (purpose of
revocation sentence is to sanction defendant’s breach of trust). Contrary to
Hermosillo’s contention, the district court did not impose the sentence solely or
even primarily to punish him for the violation conduct. See id. at 1063.
AFFIRMED.
1
In light of this conclusion, we need not address the parties’ dispute over whether,
at a revocation sentencing, the Guidelines range for supervised release is the range
that applied at the original sentencing or the statutory range.
3 19-50248