USA v. Christian Garcia-Garcia, No. 10-50274 (9th Cir. 2011)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 11 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-50274 D.C. No. 3:06-cr-02371-BEN v. MEMORANDUM * CHRISTIAN WILLIAMS GARCIAGARCIA, a.k.a. Sergio Christian GarciaGarcia, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted April 5, 2011 ** Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges. Christian Williams Garcia-Garcia appeals from the district court s judgment revoking his supervised release, and the resulting 18-month sentence. 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 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Garcia contends that the revocation procedures set forth in 18 U.S.C. § 3583(e)(3) violate his rights under the Fifth and Sixth Amendments, because the sentence exceeds the statutory maximum the court can impose under the Guidelines, and because the allegation was not presented to either a grand or petit jury. This contention is foreclosed. See United States v. Huerta-Pimental, 445 F.3d 1220, 1224-1225 (9th Cir. 2006); see also United States v. Patterson, 230 F.3d 1168, 1170-71 (9th Cir. 2000) (the revocation of supervised release is a punishment imposed for the original offense). Garcia also contends that the imposition of a term of imprisonment upon the revocation of supervised release violates both the double jeopardy clause of the Fifth Amendment, and the Separation of Powers doctrine. This contention is also foreclosed. See United States v. Soto-Olivas, 44 F.3d 788, 789-90 (9th Cir. 1995); see also United States v. Mejia-Sanchez, 172 F.3d 1172, 1175 (9th Cir. 1999). Garcia next contends that the district court relied on impermissible factors when imposing the revocation sentence. The record reflects that the court did not rely on any factors specifically excluded by § 3583(e), but focused instead on Garcia s breach of the court s trust. See United States v. Miqbel, 444 F.3d 1173, 1181-83 (9th Cir. 2006). The record further reflects that the court considered the appropriate sentencing factors under § 3553(a), and provided an adequate 2 10-50274 explanation for the sentence imposed. The district court did not procedurally err, and the sentence was substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). Finally, Garcia contends that the district court should have recused itself based on comments made at the original sentencing hearing that revealed the court s bias against him. The district court did not abuse its discretion by declining to recuse itself. See 28 U.S.C. § 455(b)(1); see also United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir. 1988). AFFIRMED. 3 10-50274
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