United States v. Robert Heizelman

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2020
• Docket: 19-50346
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50346

Plaintiff-Appellee, D.C. No. 10CR2417-JAH

v. MEMORANDUM

ROBERT HADLEY HEIZELMAN,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Submitted August 11, 2020** Pasadena, California

Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and WATSON,*** District Judge.

Defendant-Appellant Robert Heizelman (“Appellant”), appeals the district

court’s revocation of his supervised release and resulting sentence. Because

 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 Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by designation. 1 Appellant has raised a “procedural sentencing error . . . for the first time on

appeal,” we apply plain error review. United States v. Rangel, 697 F.3d 795, 800

(9th Cir. 2012); see also Holguin-Hernandez v. United States, 140 S. Ct. 762, 767

(2020) (declining to address “what is sufficient to preserve a claim that a trial court

used improper procedures in arriving at its chosen sentence”); id. (Alito, J.

concurring) (“[A]s we have previously explained, failing to object at all to a

procedural [sentencing] error . . . will subject a procedural challenge to plain-error

review.”). Plain error is (1) error, (2) that is plain, and (3) that affects substantial

rights. United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009) (internal

citations and quotation marks omitted). “If these three conditions are met, the

court may then exercise its discretion to grant relief if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. Finding no

plain error, we affirm.

1. The district court provided sufficient reasoning for imposing its

Guideline-range sentence and did not disregard Appellant’s arguments. A “court

must explain [the sentence] sufficiently to permit meaningful appellate review.”

United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). A district

court “need not tick off each of the [18 U.S.C.] § 3553(a) factors to show that it

has considered them.” Id.

2 Here, the district court identified that the admitted violations were Grade A

violations, acknowledged Appellant’s criminal history category of III, and

calculated the corresponding Guideline range to be 18–24 months. It then

sentenced Appellant to a within-guideline-range sentence of 20 months. See

United States v. Vasquez-Perez, 742 F.3d 896, 900 (9th Cir. 2014) (“[A] sentence

within the Guidelines range often needs little explanation, and a sufficient

explanation can sometimes be inferred from the record as a whole.”). The district

court also considered and incorporated Appellant’s sentencing requests and

included mental health treatment and time at a half-way house. The district court

therefore did not plainly err in imposing the sentence.

2. We do not address Appellant’s novel jurisdictional argument because, even

accepting Appellant’s argument that the district court did not have jurisdiction over

two of the alleged violations, any error did not seriously affect the fairness or

integrity of the sentence. See Hammons, 558 F.3d at 1103. Appellant admitted to

other conduct that established two Grade A violations, either of which would have

been sufficient to qualify Appellant for a Guideline range of 18 to 24 months. See

U.S.S.G. § 7B1.4(a). Furthermore, the district court could consider Appellant’s

“continued pattern of unlawful behavior,” a permissible consideration under 18

U.S.C. § 3583. United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007).

AFFIRMED.