United States v. Gomez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-325 D.C. No. Plaintiff - Appellee, 2:18-cr-00137-DCN-1 District of Idaho, Pocatello v. MEMORANDUM* DONAVAN LEE GOMEZ,

Defendant - Appellant.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Submitted November 14, 2023**

Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.

Donavan Lee Gomez appeals from the district court’s judgment and

challenges the 24-month sentence imposed upon the second revocation of his

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

Gomez contends that the district court erred by failing to explain the

* 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). sentence adequately and by improperly imposing the sentence to punish him. We

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

1108 (9th Cir. 2010), and conclude that there is none. The record reflects that the

district court listened to Gomez’s mitigating arguments, with which it was already

familiar. The court explained that an above-Guidelines, statutory maximum

sentence was warranted in light of Gomez’s repeated non-compliance with court

orders despite previous exercises of leniency. See United States v. Carty, 520 F.3d

984, 992 (9th Cir. 2008) (en banc). Moreover, the record reflects that the district

court relied on only proper sentencing factors, including Gomez’s multiple

breaches of the court’s trust and undisputed unsuitability for supervised release.

See 18 U.S.C. § 3583(e); United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir.

2007).

Gomez also contends that the sentence is substantively unreasonable in light

of his mitigating circumstances and because a shorter sentence would have sufficed

to address his non-compliance. In light of the § 3583(e) sentencing factors and the

totality of the circumstances, however, the district court did not abuse its

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).

AFFIRMED.

2 23-325