United States v. Michael Vasquez

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 2021
• Docket: 20-10268
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10268

Plaintiff-Appellee, D.C. No. 2:08-cr-00655-ROS-2

v. MEMORANDUM* MICHAEL VASQUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Submitted August 17, 2021**

Before: CHRISTEN, COLLINS, and LEE, Circuit Judges.

Michael Vasquez appeals from the district court’s order revoking supervised

release and imposing an 18-month sentence. We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), and we affirm.

Vasquez contends that the district court violated his due process rights and

* 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). Federal Rule of Criminal Procedure 32.1 by relying on the conduct underlying a

dismissed allegation during sentencing after the magistrate judge assertedly

assured Vasquez that the dismissed allegation would not impact his sentence. We

disagree.1 The court provided Vasquez with written notice of the alleged

violations, properly revoked supervised release on the basis of the violation to

which Vasquez admitted, and dismissed the remaining allegations. Contrary to

Vasquez’s assertion, the magistrate judge did not represent that the court would not

consider relevant conduct when determining the sentence. To the extent Vasquez

contends that his admission to a violation was not knowing or voluntary, see

United States v. Stocks, 104 F.3d 308, 312 (9th Cir. 1997), the record belies this

argument. Indeed, Vasquez’s own sentencing papers reflected his understanding

that the district court would be “in the best position to weigh the events of June

12”—i.e., the conduct underlying the dismissed allegation—“in the totality of the

circumstances.” (ER 13.) The court’s consideration of the dismissed allegation in

the disposition report was permissible and did not deprive Vasquez of due process.

See 18 U.S.C. § 3583(e) (instructing the court to consider certain 18 U.S.C.

§ 3553(a) sentencing factors in determining the revocation sentence); United States

v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009) (district court is “largely

1 We need not resolve the parties’ dispute as to the appropriate standard of review because our conclusion is the same under any standard.

2 20-10268 unlimited as to the kind of information” it can consider at sentencing as long as the

information contains some “minimal indicium of reliability” (internal quotations

omitted)).

Vasquez also contends that his 18-month sentence is substantively

unreasonable because the court assertedly placed undue emphasis on the

seriousness of the criminal conduct described in a dismissed allegation in the

disposition report, in violation of United States v. Simtob, 485 F.3d 1058 (9th Cir.

2007). The district court did not abuse its discretion. See Gall v. United States,

552 U.S. 38, 51 (2007). As we have stated, the court did not err by considering the

conduct underlying the dismissed allegation and the record does not support the

contention that the court imposed the sentence “solely, or even primarily” based on

the severity of the conduct described in the dismissed allegation. Simtob, 485 F.3d

at 1063. Rather, the court properly considered that conduct as a factor

“contributing to the severity of [Vasquez’s] breach of trust,” as part of a “full

review of [his] history and [his] likelihood of repeating that history.” Id. The

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

the totality of the circumstances. See Gall, 552 U.S. at 51. Contrary to Vasquez’s

suggestion, the record also reflects that the court considered Vasquez’s mitigating

facts and arguments.

AFFIRMED.

3 20-10268