United States v. Wylie Thurman

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2019
• Docket: 18-30100
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 18-30100 18-30101 Plaintiff-Appellee, D.C. Nos. 2:12-cr-00026-SMJ v. 2:17-cr-00196-SMJ

WYLIE LUCAS JOHN THURMAN, a.k.a. Wiley Lucas John Thurman, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Wylie Lucas John Thurman appeals from the district court’s judgments and

challenges the 60-month sentence imposed upon revocation of his supervised

release and the 30-month sentence imposed following his guilty-plea conviction

for failure to register, in violation of 18 U.S.C. § 2250(a). We have jurisdiction

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

Thurman first contends that the district court failed to notify him that it

intended to rely on his failure to undergo substance abuse treatment as a reason to

vary upward from the Guideline range. We review for plain error, see United

States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008), and conclude that there is

none. Thurman provides no authority from this circuit to support his claim that the

court was required to give him notice of the evidence it might consider before

imposing above-Guidelines sentences. Moreover, the presentence report gave

Thurman adequate notice that his failure to engage in substance abuse treatment on

supervised release could be an issue at sentencing.

Thurman also argues that his sentences are substantively unreasonable.

Though the sentences imposed are significantly higher than the Guidelines range,

we do not “have a definite and firm conviction that the district court committed a

clear error of judgment in the conclusion it reached upon weighing the relevant

factors.” United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).

The 30-month sentence imposed for failure to register and the 60-month revocation

sentence are substantively reasonable in light of the relevant 18 U.S.C. § 3553(a)

sentencing factors and the totality of the circumstances, including Thurman’s

continued substance abuse, high risk for recidivism, repeated violations of

conditions, and decision to abscond while on supervised release. See Gall v.

2 18-30100 & 18-30101 United States, 552 U.S. 38, 51 (2007).

AFFIRMED.

3 18-30100 & 18-30101