United States v. John Moore

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10314

Plaintiff-Appellee, D.C. No. 2:13-cr-00324-LRH-CWH-1 v.

JOHN M. MOORE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted July 12, 2022**

Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.

John M. Moore appeals from the district court’s judgment and challenges the

24-month sentence imposed upon his second revocation of supervised release. We

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

Moore contends that the district court (1) procedurally erred by failing to

* 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). consider or address his arguments for a lower sentence, and (2) erred and violated

his due process rights by relying on an erroneous factual finding that Moore spent

“only two years” in state custody for the conduct underlying the revocation. 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 considered Moore’s arguments and sufficiently explained its reasons

for imposing the within-Guidelines sentence, including Moore’s criminal history

and characteristics. See United States v. Perez-Perez, 512 F.3d 514, 516 (9th Cir.

2008). Even assuming the district court erred by referring to Moore’s 34-month

state sentence as being “only two years,” Moore has not shown that this alleged

error affected his substantial rights. See United States v. Christensen, 732 F.3d

1094, 1105-06 (9th Cir. 2013). Finally, the record does not support Moore’s

contention that the district court placed improper weight on the seriousness of the

underlying state drug offense. Rather, the court was concerned with Moore’s

repeated and immediate breach of the court’s trust. See United States v. Simtob,

485 F.3d 1058, 1062-63 (9th Cir. 2007) (district court may consider the severity of

the conduct underlying the revocation as long as it does not impose the sentence

solely or primarily on that basis).

Moore further argues that the sentence is substantively unreasonable. The

district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,

2 21-10314 51 (2007). The within-Guidelines sentence is substantively reasonable in light of

the 18 U.S.C. § 3583(e) factors and the totality of the circumstances, including

Moore’s multiple breaches of the court’s trust. See Gall, 552 U.S. at 51; United

States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be

given the various factors in a particular case is for the discretion of the district

court.”).

AFFIRMED.

3 21-10314