United States v. Fallon

300 F. App'x 509

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2008
• Docket: No. 08-50091
• Status: Published

Opinion

MEMORANDUM

**

James Fallon appeals the revocation of his supervised release and the nine-month sentence imposed upon revocation.

Fallon contends that the procedures by which his supervised release was revoked are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Fallon concedes that this argument is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220 (9th Cir.2006).

Fallon also argues that the Supreme Court’s decision in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) called into question the constitutionality of the revocation procedures. He concedes that this contention is foreclosed by this court’s decision in United States v. Santana, 526 F.3d 1257, 1262 (9th Cir.2008).

Finally, Fallon’s request that we stay this appeal pending resolution of his appeal before the Court of Appeals for the Third Circuit is denied as moot. The Third Circuit affirmed the restitution award and entered judgment on October 15, 2008.

Accordingly, the government’s unopposed motion for summary affirmance is granted because the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.