NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-444 D.C. No. Plaintiff-Appellee, 2:16-cr-00048-PA-1 v. MEMORANDUM* DANIEL LOPEZ III, AKA Danny Boy,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Submitted June 3, 2024** Pasadena, California
Before: M. SMITH and BADE, Circuit Judges, and FITZWATER, District Judge.***
Defendant-Appellant Daniel Lopez, III appeals from the district court’s
order revoking supervised release and sentencing him to a term of 21 months’
* 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). *** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. imprisonment to run consecutive to the sentence for his felony conviction in a
parallel criminal proceeding. We have jurisdiction over the district court’s final
sentence under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, see United States v.
Montoya, 82 F.4th 640, 646 (9th Cir. 2023) (en banc), and we affirm.
1. On appeal, Lopez argues that the district court violated Rule 32.1 of
the Federal Rules of Criminal Procedure, and his rights under the Due Process
clause, by unnecessarily delaying sentencing in the supervised release matter. But
before the district court, Lopez agreed to continue sentencing in the supervised
release matter until after sentencing by a different judge in the parallel criminal
matter. After sentencing was continued in both matters for several months, Lopez
asked the court to sentence him immediately in the supervised release matter so
that he could receive treatment for a medical condition. He did not argue that any
continued delay in sentencing would violate Rule 32.1 or the Due Process clause.
We therefore review these claims for plain error. See Fed. R. Crim. P. 52(b).
Lopez acknowledges that plain error review applies to his remaining claims.
2. Under Rule 32.1(b)(2), “the court must hold the revocation hearing
within a reasonable time . . . .” Even if we were to assume that under these
circumstances delaying sentencing in the supervised release matter was
unreasonable and thus error, it was not plain error. A plain error must be “clear or
obvious”; it may not be “subject to reasonable dispute.” Puckett v. United States,
2 23-444 556 U.S. 129, 135 (2009) (citing United States v. Olano, 507 U.S. 725, 734
(1993)). “An error cannot be plain where there is no controlling authority on point
and where the most closely analogous precedent leads to conflicting results.”
United States v. House, 31 F.4th 745, 754 (9th Cir. 2022) (citation omitted).
There is no binding authority establishing that delaying sentencing for
several months in a supervised release matter until after sentencing in a parallel
criminal matter is unreasonable. In United States v. Reyes-Solosa, 761 F.3d 972
(9th Cir. 2014), we held that Rule 32.1 permits district courts to “continue post-
revocation sentencing for a reasonable time to consider a supervised releasee’s
sentence in the underlying criminal proceeding as part of evaluating the supervised
releasee’s breach of trust.” Id. at 976–77. Thus, the district court’s rationale for
delaying Lopez’s revocation sentencing—to allow for the imposition of the
underlying criminal sentence—was a “sound reason[]” for “continu[ing] a
sentencing hearing.” Id. at 976. And while in Reyes-Solosa we considered
whether a three-week delay was reasonable under Rule 32.1, we did not suggest
that three weeks, or any other specific time, was the outer limit for the Rule’s
“reasonable time” requirement. Id. Therefore, any error in this case as to the
length of the continuance was “subject to reasonable dispute.” Puckett, 556 U.S. at
135. The district court did not plainly err.
3. Lopez’s due process argument independently fails because he has not
3 23-444 demonstrated “actual prejudice.” United States v. Santana, 526 F.3d 1257, 1261
(9th Cir. 2008). “[O]ur cases considering due process claims for revocation
proceedings have held that relief is not called for unless there was both
unreasonable delay and prejudice.” Id. at 1260. Lopez contends that he was
prejudiced by the delay in sentencing due to his “pressing medical needs,” and
because he would have received concurrent sentences if he had been sentenced on
the supervised release violation first, resulting in a “significantly lower” aggregate
sentence.
Lopez has not shown actual prejudice based on his medical needs. He
delayed for months before notifying either district judge about his pressing medical
needs, and even after he eventually raised this issue with the court, he agreed to a
two-week continuance of his sentencing hearing. And even if the district court had
sentenced Lopez in the supervised release matter in December 2022, Lopez points
to no evidence that suggests he would have received treatment immediately given
that he had not been sentenced in the criminal case.
Lopez also has not shown any actual prejudice based on his consecutive
sentences because he had no right to receive concurrent sentences. Indeed, a
district court may defer supervised release sentencing “to consider the entire
picture, including the sentence imposed for the underlying crime that caused the
revocation.” Reyes-Solosa, 761 F.3d at 976. Moreover, the Sentencing Guidelines
4 23-444 recommend “that a post-revocation sentence should be imposed consecutively to a
criminal sentence: the ‘sanction for the violation of trust should be in addition, or
consecutive, to any sentence imposed for the new conduct.’” Id. at 975 (quoting
U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b), introductory cmt.).
4. Lopez further argues that although the district court stated the
Guidelines range at the preliminary hearing, it plainly erred by failing to restate
that range at the sentencing hearing. Under plain error review, we may reverse
only if Lopez demonstrates “a reasonable probability that he would have received a
different sentence if the district court had expressly” reannounced the applicable
Guidelines range. United States v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-444 D.C. No. Plaintiff-Appellee, 2:16-cr-00048-PA-1 v. MEMORANDUM* DANIEL LOPEZ III, AKA Danny Boy,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding
Submitted June 3, 2024** Pasadena, California
Before: M. SMITH and BADE, Circuit Judges, and FITZWATER, District Judge.***
Defendant-Appellant Daniel Lopez, III appeals from the district court’s
order revoking supervised release and sentencing him to a term of 21 months’
* 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). *** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. imprisonment to run consecutive to the sentence for his felony conviction in a
parallel criminal proceeding. We have jurisdiction over the district court’s final
sentence under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, see United States v.
Montoya, 82 F.4th 640, 646 (9th Cir. 2023) (en banc), and we affirm.
1. On appeal, Lopez argues that the district court violated Rule 32.1 of
the Federal Rules of Criminal Procedure, and his rights under the Due Process
clause, by unnecessarily delaying sentencing in the supervised release matter. But
before the district court, Lopez agreed to continue sentencing in the supervised
release matter until after sentencing by a different judge in the parallel criminal
matter. After sentencing was continued in both matters for several months, Lopez
asked the court to sentence him immediately in the supervised release matter so
that he could receive treatment for a medical condition. He did not argue that any
continued delay in sentencing would violate Rule 32.1 or the Due Process clause.
We therefore review these claims for plain error. See Fed. R. Crim. P. 52(b).
Lopez acknowledges that plain error review applies to his remaining claims.
2. Under Rule 32.1(b)(2), “the court must hold the revocation hearing
within a reasonable time . . . .” Even if we were to assume that under these
circumstances delaying sentencing in the supervised release matter was
unreasonable and thus error, it was not plain error. A plain error must be “clear or
obvious”; it may not be “subject to reasonable dispute.” Puckett v. United States,
2 23-444 556 U.S. 129, 135 (2009) (citing United States v. Olano, 507 U.S. 725, 734
(1993)). “An error cannot be plain where there is no controlling authority on point
and where the most closely analogous precedent leads to conflicting results.”
United States v. House, 31 F.4th 745, 754 (9th Cir. 2022) (citation omitted).
There is no binding authority establishing that delaying sentencing for
several months in a supervised release matter until after sentencing in a parallel
criminal matter is unreasonable. In United States v. Reyes-Solosa, 761 F.3d 972
(9th Cir. 2014), we held that Rule 32.1 permits district courts to “continue post-
revocation sentencing for a reasonable time to consider a supervised releasee’s
sentence in the underlying criminal proceeding as part of evaluating the supervised
releasee’s breach of trust.” Id. at 976–77. Thus, the district court’s rationale for
delaying Lopez’s revocation sentencing—to allow for the imposition of the
underlying criminal sentence—was a “sound reason[]” for “continu[ing] a
sentencing hearing.” Id. at 976. And while in Reyes-Solosa we considered
whether a three-week delay was reasonable under Rule 32.1, we did not suggest
that three weeks, or any other specific time, was the outer limit for the Rule’s
“reasonable time” requirement. Id. Therefore, any error in this case as to the
length of the continuance was “subject to reasonable dispute.” Puckett, 556 U.S. at
135. The district court did not plainly err.
3. Lopez’s due process argument independently fails because he has not
3 23-444 demonstrated “actual prejudice.” United States v. Santana, 526 F.3d 1257, 1261
(9th Cir. 2008). “[O]ur cases considering due process claims for revocation
proceedings have held that relief is not called for unless there was both
unreasonable delay and prejudice.” Id. at 1260. Lopez contends that he was
prejudiced by the delay in sentencing due to his “pressing medical needs,” and
because he would have received concurrent sentences if he had been sentenced on
the supervised release violation first, resulting in a “significantly lower” aggregate
sentence.
Lopez has not shown actual prejudice based on his medical needs. He
delayed for months before notifying either district judge about his pressing medical
needs, and even after he eventually raised this issue with the court, he agreed to a
two-week continuance of his sentencing hearing. And even if the district court had
sentenced Lopez in the supervised release matter in December 2022, Lopez points
to no evidence that suggests he would have received treatment immediately given
that he had not been sentenced in the criminal case.
Lopez also has not shown any actual prejudice based on his consecutive
sentences because he had no right to receive concurrent sentences. Indeed, a
district court may defer supervised release sentencing “to consider the entire
picture, including the sentence imposed for the underlying crime that caused the
revocation.” Reyes-Solosa, 761 F.3d at 976. Moreover, the Sentencing Guidelines
4 23-444 recommend “that a post-revocation sentence should be imposed consecutively to a
criminal sentence: the ‘sanction for the violation of trust should be in addition, or
consecutive, to any sentence imposed for the new conduct.’” Id. at 975 (quoting
U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b), introductory cmt.).
4. Lopez further argues that although the district court stated the
Guidelines range at the preliminary hearing, it plainly erred by failing to restate
that range at the sentencing hearing. Under plain error review, we may reverse
only if Lopez demonstrates “a reasonable probability that he would have received a
different sentence if the district court had expressly” reannounced the applicable
Guidelines range. United States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008).
Lopez does not explain why there is “a reasonable probability that he would have
received a different sentence,” id., if the district court had restated the applicable
range. The district court stated that the range was “between 21 and 27 months of
incarceration,” and ultimately sentenced Lopez to the low end of that range—21
months’ imprisonment. Lopez does not argue that the district court stated an
incorrect range, or that the range had changed between the preliminary hearing and
sentencing. Therefore, Lopez has not demonstrated a reasonable probability that
his sentence would have been different if the district court had restated the
applicable Guidelines range.
5. Finally, the district court did not indicate that the sentence it imposed
5 23-444 was for the purpose of rehabilitation in violation of Tapia v. United States, 564
U.S. 319, 321 (2011) (“[T]he Sentencing Reform Act precludes federal courts from
imposing or lengthening a prison term in order to promote a criminal defendant’s
rehabilitation.”). But “[a] court commits no error by discussing the opportunities
for rehabilitation within prison or the benefits of specific treatment or training
programs.” Id. at 334. Here, the district court stated that Lopez had “engaged in
reckless and egregious conduct that is a danger to the public and himself” and that
he had not been “deterred from future criminal behavior” despite having already
served time in prison and in light of his violation of the supervised release
conditions. The district court briefly referred to rehabilitation when explaining that
the sentence was “sufficient but not greater than necessary” to comply with the
sentencing purposes of 18 U.S.C. § 3553(a)(2). But the court did not suggest that
it “selected the length of the sentence to ensure that [Lopez] could complete” any
particular rehabilitation program. Tapia, 564 U.S. at 334. Accordingly, we
conclude that there was no Tapia error.1
AFFIRMED.
1 Lopez’s unopposed request for judicial notice, Docket No. 20, and unopposed motion for leave to file a late presentence report, Docket No. 47, are granted.
6 23-444