United States v. Mark Hess

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 11, 2020
• Docket: 19-50359
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. 19-50359

Plaintiff-Appellee, D.C. No. 2:08-cr-00351-ODW-1

v. MEMORANDUM* MARK WAYNE HESS,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding

Submitted August 5, 2020**

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

Mark Wayne Hess appeals from the district court’s judgment and challenges

the 24-month sentence imposed upon revocation of his supervised release. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and

remand in part.

* 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). Hess contends that the district court procedurally erred by failing to discuss

the 18 U.S.C. § 3583(e) sentencing factors and to explain its reasons for revoking

supervised release and imposing the 24-month sentence and lifetime term of

supervision. We review for plain error, see United States v. Valencia-Barragan,

608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that the district court did not

err. The court considered the applicable sentencing factors, explicitly noting that it

could only consider those 18 U.S.C. § 3553(a) factors that were incorporated in

§ 3583(e), and its reasons for revoking supervised release and imposing a within-

Guidelines custodial sentence and lifetime term of supervision are apparent from

the record. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en

banc). Further, the record does not support Hess’s contention that the district court

insufficiently considered his mitigating arguments, which were described by

counsel and reiterated by Hess during his allocution.

Hess also argues that the sentence is substantively unreasonable because it

was ordered to run consecutively to the remaining time on the state offense that

was the basis for the revocation. The district court did not abuse its discretion. See

U.S.S.G. § 7B1.3(f) (revocation sentence should run consecutively to any sentence

the defendant is currently serving); Gall v. United States, 552 U.S. 38, 51 (2007)

(stating standard of review). The sentence is substantively reasonable in light of

the totality of the circumstances and the § 3583(e) sentencing factors, particularly

2 19-50359 Hess’s history and characteristics and the need to sanction Hess’s breach of trust.

See Gall 552 U.S. at 51; United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.

2007) (primary purpose of revocation sentence is to sanction the defendant’s

breach of trust).

Finally, Hess challenges standard supervised release conditions five, six, and

fourteen in the written judgment. The government concedes, and we agree, that

these conditions are unconstitutionally vague. See United States v. Evans, 883

F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018). We therefore

remand for the district court to modify conditions five, six, and fourteen consistent

with our opinion in Evans.

AFFIRMED in part; VACATED and REMANDED in part.

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