United States v. Kevin Hickman

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 11, 2020
• Docket: 19-10325
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10325

Plaintiff-Appellee, D.C. No. 2:10-cr-00246-MCE-1

v.

KEVIN DUANE HICKMAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

Kevin Duane Hickman 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.

Hickman contends that the district court procedurally erred by relying on

* 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). improper sentencing factors under 18 U.S.C. § 3553(a), namely, the seriousness of

his new criminal conduct and the need to promote respect for the law. We review

unpreserved claims of procedural error for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there

is none. The district court’s explanation reflects that it permissibly considered

Hickman’s ongoing poor performance on supervised release, which had been

revoked once before, and mentioned his new offenses in connection with its

consideration of Hickman’s significant criminal history. See United States v.

Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007) (district court may consider the

seriousness of the offenses underlying the revocation “to a lesser degree as part of

the criminal history of the violator”).

Hickman also contends that his sentence is substantively unreasonable. The

district court did not abuse its discretion by imposing the within-Guidelines

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is

substantively reasonable in light of the 18 U.S.C. § 3583(e) factors and the totality

of the circumstances, including, as the district court highlighted, Hickman’s

criminal history and performance on supervision. See Gall, 552 U.S. at 51;

Simtob, 485 F.3d at 1062-63.

AFFIRMED.

2 19-10325