United States v. Jose Montano-Rivas

Ninth Circuit

United States v. Jose Montano-Rivas

546 F. App'x 683

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 26, 2013

Docket13-50076

StatusUnpublished

Cited by1 cases

This text of 546 F. App'x 683 (United States v. Jose Montano-Rivas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Jose Montano-Rivas, 546 F. App'x 683 (9th Cir. 2013).

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Opinion

MEMORANDUM **

Jose Luis Montano-Rivas appeals from the district court’s judgment and challenges the 24-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Montano-Rivas contends that the district court violated Federal Rule of Criminal Procedure 32(i)(4)(A)(iii) by failing to *684 provide an opportunity for the government to present its sentencing recommendation. We review for plain error, see United States v. Waknine, 543 F.3d 546, 552-53 (9th Cir.2008), and find none. As the parties’ briefs reflect, the law is unclear with respect to whether Rule 32 (i) (4) (A) (iii) applies to supervised release revocation proceedings. Thus, any error by the district court in failing to provide the government an opportunity to speak before imposing sentence was not “plain.” See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Montano-Rivas also contends that the district court procedurally erred by failing to address his mitigation arguments. The record shows the district court heard Mon-tano-Rivas’s mitigation arguments and sufficiently explained the sentence. See Rita v. United States, 551 U.S. 338, 358-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

Montano-Rivas finally contends that the 24-month sentence is substantively unreasonable. The district court did not abuse its discretion in imposing Montano-Rivas’s sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including Montano-Rivas’s criminal history and breach of the court’s trust. See id.; United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.2007).

AFFIRMED.

**

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

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MEMORANDUM **

Jose Luis Montano-Rivas appeals from the district court’s judgment and challenges the 24-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Montano-Rivas contends that the district court violated Federal Rule of Criminal Procedure 32(i)(4)(A)(iii) by failing to *684 provide an opportunity for the government to present its sentencing recommendation. We review for plain error, see United States v. Waknine, 543 F.3d 546, 552-53 (9th Cir.2008), and find none. As the parties’ briefs reflect, the law is unclear with respect to whether Rule 32 (i) (4) (A) (iii) applies to supervised release revocation proceedings. Thus, any error by the district court in failing to provide the government an opportunity to speak before imposing sentence was not “plain.” See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Montano-Rivas also contends that the district court procedurally erred by failing to address his mitigation arguments. The record shows the district court heard Mon-tano-Rivas’s mitigation arguments and sufficiently explained the sentence. See Rita v. United States, 551 U.S. 338, 358-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

Montano-Rivas finally contends that the 24-month sentence is substantively unreasonable. The district court did not abuse its discretion in imposing Montano-Rivas’s sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including Montano-Rivas’s criminal history and breach of the court’s trust. See id.; United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.2007).

AFFIRMED.

**

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

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