United States v. Jason Christensen

Opinion

FILED NOT FOR PUBLICATION FEB 5 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50004

Plaintiff-Appellee, D.C. No. 8:18-cr-00219-AG-1

v. MEMORANDUM* JASON PAUL CHRISTENSEN,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted January 24, 2020 Pasadena, California

Before: CLIFTON and LEE, Circuit Judges, and BLOCK,** District Judge.

Defendant-Appellant Jason Paul Christensen challenges the district court’s

revocation of his supervised release. We affirm the district court’s finding that he

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. violated a condition of his supervised release, but we vacate his sentence and

remand for resentencing with instructions to give him an opportunity to allocute.

We review a district court’s revocation of a term of supervised release for an

abuse of discretion. United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). On

a sufficiency-of-the-evidence challenge to a revocation, we ask whether, “viewing

the evidence in the light most favorable to the government, any rational trier of fact

could have found the essential elements of a violation by a preponderance of the

evidence.” United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010) (citations

omitted).

Christensen argues that no rational trier of fact could have inferred from the

record that he completed a mental health evaluation and received treatment

recommendations from the evaluating professional, which was a precondition for

the district court’s finding that he had violated Condition 5 of his supervised

release. Christensen never made this challenge in the district court, and the record

shows that he attended counseling sessions before both of the appointments that he

missed. Thus, we conclude that, absent any challenge made in the district court as

to whether he was ever evaluated, a rational trier of fact could have found by a

preponderance of the evidence that these missed appointments were part of a

treatment recommendation provided by a mental health professional.

2 Nevertheless, at sentencing, the district court did not allow Christensen to

exercise his right to allocute. It is well established that failure to allow a

supervised releasee to exercise his right to allocute is plain error. United States v.

Daniels, 760 F.3d 920, 926 (9th Cir. 2014). We therefore vacate the sentence and

remand to the district court for resentencing with instructions to permit Christensen

to allocute.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.