United States v. Edgar Gonzalez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10144

Plaintiff-Appellee, D.C. No. 1:12-cr-00324-LJO

v. MEMORANDUM* EDGAR CORRAL GONZALEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Edgar Corral Gonzalez appeals from the district court’s judgment and

challenges the 24-month sentence imposed upon revocation of supervised release.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Gonzalez argues that the district court improperly imposed sentence based

* 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). on its earlier promise that it would impose the statutory maximum term if he

violated supervised release, rather than making an individualized sentencing

determination that took account of Gonzalez’s allocution, evidence of post-

sentencing rehabilitation, and other mitigating factors. Gonzalez also contends that

the district court’s purported predetermination of his sentence revealed impartiality

and bias that required the court’s recusal under 28 U.S.C. § 455 and the Due

Process Clause. Because Gonzalez raises these claims for the first time on appeal,

we review for plain error. See United States v. Valencia-Barragan, 608 F.3d 1103,

1108 (9th Cir. 2010).

The record reflects that the district court considered Gonzalez’s mitigating

arguments and the 18 U.S.C. § 3583(e) factors before imposing sentence. Though

the district court referred to its earlier promise that any violation of supervised

release would result in imposition of the maximum term, the record shows that the

court also selected the 24-month sentence in light of Gonzalez’s poor performance

on supervision and the need to protect the public. On this record, we find no plain

error in the district court’s imposition of sentence or failure to recuse itself.

Gonzalez also argues that he received ineffective assistance of counsel when

his attorney failed to move to withdraw his admission to the supervised release

violations and for the district judge’s recusal after learning that the court intended

to impose the statutory maximum term. Contrary to Gonzalez’s contention, the

2 17-10144 record does not permit us to consider this claim on direct appeal. See United States

v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).

Gonzalez’s unopposed request to take judicial notice of state court records is

granted.

AFFIRMED.

3 17-10144