United States v. White

94 F. App'x 639

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2004
• Docket: No. 02-10566
• Status: Published

Opinion

MEMORANDUM

**

Julie White appeals the district court’s revocation of probation for an underlying guilty-plea conviction for credit card fraud conspiracy, in violation of 18 U.S.C. § 1029(b)(2). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Counsel for appellant initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) stating that he found no meritorious issues for review, along with a motion to withdraw as counsel of record. We granted the motion to withdraw, appointed new counsel, and ordered further briefing on whether the district court, after revoking White’s probation, erred by fading to consider the sentencing range for the underlying offense. See United States v. Olabanji, 268 F.3d 636, 639 (9th Cir.2001).

After further briefing and upon our review of the record, we conclude the district court complied with Olabanji and the relevant probation statutes. We find no reversible error in the district court’s decision to depart upward from the sentencing range for the underlying credit card offense to a term within the statutory maximum. See 18 U.S.C. § 3742(e); United States v. Phillips, 356 F.3d 1086 (9th Cir. 2004) (recognizing de novo standard of review); see also 18 U.S.C. § 3553(a) (enumerating factors for district court to consider in imposing sentence).

White also challenges the district court’s jurisdiction to revoke probation, because she was not arrested until after her probation term expired. We are unpersuaded, because 18 U.S.C. § 3565(c) only requires that the arrest warrant issue before the probation term expires; the federal government is not required to writ a defendant out of state custody and into federal custody for purposes of executing a violation warrant. See United States v. Garrett, 253 F.3d 443, 448 (9th Cir.2001).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.