United States v. Rafael Cervantes

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2019
• Docket: 18-30245
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30245

Plaintiff-Appellee, D.C. No. 2:04-cr-00215-EFS-1

v. MEMORANDUM* RAFAEL CERVANTES,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Rafael Cervantes appeals from the district court’s judgment and challenges

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

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Cervantes contends that the district court lacked authority to revoke

* 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). supervised release and impose sentence after the date on which his term of

supervision expired. As he concedes, however, the district court had such

authority because it had issued a valid warrant during Cervantes’s term of

supervision based on his violation of supervised release. See 18 U.S.C. § 3583(i);

United States v. Ahmadzai, 723 F.3d 1089, 1091 (9th Cir. 2013). Furthermore,

there is no basis on this record to conclude that the delay between the expiration of

supervision and the revocation hearing was not reasonably necessary. See 18

U.S.C. § 3583(i).

Cervantes also contends that the district court procedurally erred by failing

to explain its decision to run the instant revocation sentence and the sentence for

his new criminal conviction consecutively. We review for plain error, see United

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude

that there is none. The district court adequately explained its reasons for imposing

the consecutive sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir.

2008) (en banc) (“The district court need not tick off each of the [18 U.S.C.]

§ 3553(a) factors to show that it has considered them.”); see also U.S.S.G.

§ 7B1.3(f). Moreover, the sentence is substantively reasonable in light of the 18

U.S.C. § 3583(e) factors and the totality of the circumstances, including

Cervantes’s criminal history. See Gall v. United States, 552 U.S. 38, 51 (2007).

AFFIRMED.

2 18-30245