United States v. Ruben Sanavia-Arellano

387 F. App'x 770

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2010
• Docket: 09-50392, 09-50425
• Status: Unpublished

Opinion

MEMORANDUM **

1. Judge Burns committed no procedural error when sentencing Ruben Sana-via-Arellano (Sanavia-Arellano). Judge Burns properly considered the § 3553(a) factors. See United States v. Dewey, 599 F.3d 1010, 1016 (9th Cir.2010) (defining procedural error as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence ... ”) (citation omitted).

2. Judge Burns did not primarily rely on Sanavia-Arellano’s most recent illegal reentry to impose sentence. Rather, Judge Burns focused on Sanavia-Arella-no’s failure to keep his promises, ie., his breach of trust. See United States v. Hammons, 558 F.3d 1100, 1104 (9th Cir.2009) (stating that at a revocation hearing, the sentencing court may impose a sentence for “breach of trust”) (citations omitted).

3. Judge Whelan’s oral pronouncement at the revocation hearing was not clear and unambiguous. Therefore, the written judgment controls. See Fenner v. United States Parole Comm’n, 251 F.3d 782, 787 (9th Cir.2001).

4. As clarified in United States v. Xinidakis, 598 F.3d 1213, 1217 (9th Cir.2010), a district court judge has discretion to impose a sentence that runs concurrently or consecutively to a prior undischarged sentence.

AFFIRMED.

** The Honorable Algenon L. Marbley, District Judge for the Southern District of Ohio, sitting by designation.