United States v. Ryan Frankforter

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2021
• Docket: 20-30249
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30249

Plaintiff-Appellee, D.C. No. 6:15-cr-00011-CCL-5 v.

RYAN SCOT FRANKFORTER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Charles C. Lovell, District Judge, Presiding

Submitted December 7, 2021** Seattle, Washington

Before: McKEOWN, CHRISTEN, and BADE, Circuit Judges.

Ryan Scot Frankforter appeals the sentence he received upon his third

revocation of supervised release. Frankforter admitted to violating, or was found

guilty of violating, a total of nine conditions of supervised release. We have

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

* 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). 1. Frankforter contends that the district court violated his due process

rights and Rule 32 of the Federal Rules of Criminal Procedure by sentencing him

based on facts not known to him before the hearing. See United States v. Havier,

155 F.3d 1090, 1092–93 (9th Cir. 1998) (discussing due process requirements

related to revocation of supervised release); United States v. Tham, 884 F.2d 1262,

1265 (9th Cir. 1989) (same). This claim fails. The petition for warrant notified

Frankforter of the conditions that he allegedly violated, along with the dates and

details of the alleged violations. See Tham, 884 F.2d at 1265. This detailed

description was sufficient to provide Frankforter notice of the facts the court would

consider at sentencing.

Moreover, there is no evidence that in the absence of the alleged error (we

find none), Frankforter would have received a shorter sentence. See United States

v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (“If there was any error, the error was

harmless in that there is no evidence any of these alleged errors, if changed, would

result in a shorter sentence for any of the Defendants.”); United States v. Perez, 526

F.3d 543, 547 (9th Cir. 2008) (explaining that due process violations are subject to

harmless error review). The supervised release violations were all Grade C

violations, and each carried the same maximum of twenty-four months’

imprisonment for Frankforter’s revocation sentence because the offense that resulted

in supervised release was a class C felony. 18 U.S.C. § 3583(e)(3). Considering

2 Frankforter’s nine violations of his supervised release conditions, any error in the

court’s consideration of certain facts at sentencing was harmless because there is no

indication that Frankforter would have received a shorter sentence. See Ali, 620 F.3d

at 1074.

2. Frankforter contends that, in setting his term of imprisonment, the

district court erred by impermissibly considering rehabilitation as a basis for that

sentence. See Tapia v. United States, 564 U.S. 319, 335 (2011) (“[A] court may

not impose or lengthen a prison sentence to enable an offender to complete a

treatment program or otherwise promote rehabilitation.”). The district court did

not err in noting the opportunities for, and benefits of, treatment. Id. at 334. And

the district court’s comments do not indicate that it imposed the twenty-four-month

prison sentence for the purpose of facilitating Frankforter’s rehabilitation. The

court considered the relevant § 3553(a) factors—the nature and circumstances of

the offense, Frankforter’s history and characteristics, the need to deter him from

further criminal conduct, the need to protect the community from future crimes by

him, and to continue to provide him with needed correctional treatment in the most

effective manner. See 18 U.S.C. § 3583(e)(3). The court noted that Frankforter’s

violations of his supervised release conditions reflected his dishonesty and were a

breach of the court’s trust.

3. Frankforter argues that his prison sentence was substantively

3 unreasonable. See United States v. Carty, 520 F.3d 984, 996 (9th Cir. 2008)

(explaining that this court will set aside a sentence only if it is procedurally

erroneous or substantively unreasonable). The record reflects that the sentence

imposed is substantively reasonable considering the totality of the circumstances—

Frankforter’s supervised release had twice been revoked for violating conditions of

supervised release, his previous revocation sentences did not deter him from

further violations, and his behavior posed a risk to the public and displayed an

unwillingness or inability to comply with release conditions—and the sentencing

factors set forth in 18 U.S.C. §§ 3553(a) and 3583(e). See Gall v. United States,

552 U.S. 38, 51–52 (2007); United States v. Overton, 573 F.3d 679, 700 (9th Cir.

2009).

AFFIRMED.