United States v. Lawrence Sikutwa

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2018
• Docket: 17-30140
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30140

Plaintiff-Appellee, D.C. No. 4:12-cr-00056-BLW

v. MEMORANDUM* LAWRENCE SIKUTWA,

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Lawrence Sikutwa appeals from the district court’s judgment and challenges

the revocation of supervised release following a contested evidentiary hearing. We

have jurisdiction under 28 U.S.C. § 1291. Reviewing for abuse of discretion, see

United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003), we affirm.

* 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). Sikutwa contends that the government failed to prove by a preponderance of

the evidence that his violation was willful and, therefore, the district court erred by

revoking his supervised release. Contrary to Sikutwa’s contention, Bearden v.

Georgia, 461 U.S. 660 (1983), did not require the district court to find that

Sikutwa’s violation was willful. In that case, the Court addressed the

circumstances under which the trial court may imprison a defendant for failure to

pay. See id. at 672 (court may not impose sentence of imprisonment for failure to

pay unless failure was willful or, in the case of bona fide efforts to pay, where the

court determines that alternatives to imprisonment are insufficient). Bearden is

inapposite here because the district court did not impose a term of imprisonment; it

instead opted to impose a new supervised release term, with a 60-day period of

home confinement. In any event, the evidence here was sufficient to show

willfulness, notwithstanding the fact that Sikutwa paid more than was required on

some occasions. See United States v. Jeremiah, 493 F.3d 1042, 1045-46 (9th Cir.

2007).

AFFIRMED.

2 17-30140