United States v. Beraldo

193 F. App'x 685

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2006
• Docket: No. 04-50543
• Status: Published

Opinion

MEMORANDUM

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Jeffrey Lewis Beraldo appeals from the district court’s order revoking his supervised release and imposing a 24-month sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Beraldo contends that the supervised release revocation statute, 18 U.S.C. § 3583(e), violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the imposition of imprisonment upon revocation depends upon a fact not found beyond a reasonable doubt by the jury. This contention is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220 (9th Cir.2006) (holding supervised release scheme does not violate the Sixth Amendment principles recognized by Apprendi, and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and holding that revocation of supervised release and imposition of an additional term of imprisonment are discretionary and do not violate Booker).

Beraldo also contends that the district court misapplied the Guidelines when it erroneously believed that it was required to revoke his supervised release and impose a consecutive sentence. However, upon review, we conclude that the record, taken as a whole, does not demonstrate that the district court believed that it was required to follow the Chapter 7 Guidelines. Further, the record shows that the district court properly considered the relevant sentencing factors set forth in 18 U.S.C. § 3553 in deciding to impose the consecutive sentence. See United States v. Jackson, 176 F.3d 1175, 1178 (9th Cir.1999) (per curiam).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.