United States v. Francisco Kelly-Palmer

Opinion

FILED NOT FOR PUBLICATION MAY 19 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50155

Plaintiff - Appellee, D.C. No. 3:04-CR-00253-H-1

v. ORDER AMENDING FRANCISCO KELLY-PALMER,

Defendant - Appellant.

Before: FRIEDMAN,* D.W. NELSON, and REINHARDT, Circuit Judges.

The memorandum disposition filed on April 29, 2010, is amended as

follows:

After the first sentence of the paragraph numbered “2" on page 4, delete the

next two sentences beginning with “Although those prior violations” and ending

with “setting his sentence.” In place of the deleted sentences, insert the following

two sentences:

* Daniel M. Friedman, United States Circuit Judge for the Federal Circuit, sitting by designation. 2. 18 U.S.C. § 3553(a)(2)(B) requires the sentencing

court to consider a sentence that “afford[s] adequate deterrence

to criminal conduct,” and the district court properly concluded

that the imposition of a period of supervised release had

repeatedly failed to deter Kelly-Palmer from further criminal

conduct involving illegal reentry, in violation of supervised

release. Kelly-Palmer’s previous supervised release violations

were therefore pertinent in setting his sentence.

The next sentence beginning “In view of” should be a separate paragraph.

The amended part 2 now reads as follows:

2. The district court properly relied upon Kelly-Palmer’s

previous violations of supervised release in determining the

sentence. 18 U.S.C. § 3553(a)(2)(B) requires the sentencing

court to consider a sentence that “afford[s] adequate deterrence

to criminal conduct,” and the district court properly concluded

that the imposition of a period of supervised release had

repeatedly failed to deter Kelly-Palmer from further criminal

conduct involving illegal reentry, in violation of supervised

2 release. Kelly-Palmer’s previous supervised release violations

were therefore pertinent in setting his sentence.

In view of those facts and the Sentencing Guidelines direction

that “imprisonment imposed upon the revocation of . . . supervised

release shall . . . be served consecutively to any sentence of

imprisonment that the defendant is serving,” U.S.S.G. § 7B1.3(f), the

consecutive sentence was reasonable.

The petition for rehearing and petition for rehearing en banc are

still pending. No further petitions shall be entertained.