United States v. Liupaono

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 25-778 D.C. No. 1:16-cr-00783-LEK-1 Plaintiff - Appellee,

v. MEMORANDUM* DUANE FOMAI LIUPAONO,

Defendant - Appellant.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Submitted September 17, 2025**

Before: SILVERMAN, OWENS, and BRESS, Circuit Judges.

Duane Fomai Liupaono appeals from the district court’s judgment revoking

his supervised release and imposing a sentence of 12 months and 1 day. We have

jurisdiction under 28 U.S.C § 1291, and 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). Liupaono’s request to waive oral argument is granted. Liupaono first contends that there was insufficient evidence to support the

finding that he knowingly violated supervised release in light of an alleged

ambiguity created by certain supervised release conditions in his prior revocation

judgment. However, a preponderance of the evidence showed that Liupaono was

aware of his obligation to report to Sand Island Treatment Center upon his release

and knowingly failed to follow the instructions of his probation officer to do so.

See United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010) (supervised release

violation must be supported by a preponderance of the evidence). The court,

therefore, did not abuse its discretion in revoking supervised release. See United

States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008).1

Liupaono next contends that the district court implicitly based his sentence

on the need to provide just punishment and promote respect for the law, which are

impermissible factors. The district court did not plainly err because it did not rely

on 18 U.S.C. § 3553(a)(2)(A) “expressly or by unmistakable application.” Esteras

v. United States, 145 S. Ct. 2031, 2045 (2025). To the contrary, the court properly

treated Liupaono’s “complete disregard” of the orders of probation and the court as

a measure of the severity of Liupaono’s breach of the court’s trust. See United

1 Liupaono also argues that special condition three in his prior revocation judgment impermissibly delegated to the probation officer the authority to determine the duration of inpatient treatment. However, Liupaono was not found to have violated special condition three, nor did the court reimpose that condition, in these proceedings.

2 25-778 States v. Taylor, _ F.4th _, No. 24-1244, 2025 WL 2525850 at *7-8 (9th Cir. Sept.

3, 2025). Moreover, the court adequately explained its reasons for the above-

Guidelines sentence. See id. at *6-7.

Lastly, Liupaono argues the sentence is substantively unreasonable because

he lacked clear notice of what was required of him on supervised release, and he

did not act deliberately. The district court considered these arguments but found

that Liupaono knowingly violated probation’s clear instructions. In light of this

finding, which is supported by the record, and the 18 U.S.C. § 3583(e) factors, the

above-Guidelines sentence is substantively reasonable and the district court did not

abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).

AFFIRMED.

3 25-778