USA V. NIGEL ERNST, No. 19-30137 (9th Cir. 2020)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FEB 11 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 19-30137 D.C. No. 9:05-cr-00053-DWM-1 v. MEMORANDUM* NIGEL GRAHAM ERNST, Defendant-Appellant. Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding Submitted February 4, 2020** Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges. Nigel Graham Ernst appeals from the district court’s judgment and challenges the 78-month sentence imposed upon his fourth revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Ernst contends that the district court erred by failing to consider adequately * 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). the 18 U.S.C. § 3583(e) sentencing factors and relying on the need to promote respect for the law, which is an improper consideration in a revocation proceeding. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none. The record reflects that the district court considered and relied upon only proper sentencing factors, including Ernst’s repeated breach of the court’s trust. See 18 U.S.C. § 3583(e); United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007). Ernst also contends that the sentence is substantively unreasonable. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the section 3583(e) sentencing factors and the totality of the circumstances, including Ernst’s extensive history of non-compliance and the need for deterrence. See Gall, 552 U.S. at 51; Simtob, 485 F.3d at 1063. AFFIRMED. 2 19-30137

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