Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)
Annotate this CaseNo. 90-30307
United States Court of Appeals, Ninth Circuit.
Before WRIGHT and O'SCANNLAIN, Circuit Judges, and PHILIP M. PRO,** District Judge.
MEMORANDUM***
Fralin was convicted of being a felon in possession of a firearm. He was sentenced to 14 months imprisonment followed by three years of supervised release. While on release, he was convicted of driving while intoxicated and driving without a license. These convictions violated the terms of his supervised release, which the court then revoked. He appeals the 24 month prison sentence.
* He argues that in sentencing him the district court failed to take into account his employment, support of his family, progression in his substance abuse treatment and change of habits. Such a failure would violate 18 U.S.C. § 3583(e) (3) (1988).1 We review de novo the legality of a sentence. United States v. Lockard, 910 F.2d 542, 543 (9th Cir. 1990).
At sentencing, the district court said:
Mr. Fralin, you have not been evidencing a good attitude at all. You haven't followed through with your counseling. You haven't really any respect for the law. Violate the drinking statutes, drive a vehicle without a license, and you ignored this Court's order ordering you to appear before the Court for a hearing. These revocation allegations against you, and the probation department says, and I believe them after examining the file, that you've simply used up all of your options.
Not only did the court directly address the circumstances of the offense and Fralin's history and characteristics, it indicated that it had read the file and presentence report, which detailed the same factors. Failure to discuss on the record all characteristics and circumstances to which Fralin referred does not indicate the court failed to consider requisite Sec. 3553(a) (1) factors.
The two-year sentence was authorized by Sec. 3583(e) and was not imposed in violation of law.
II
We construe Fralin's other arguments as raising two issues contesting the reasonableness of his sentence. First, he argues that the district court ignored positive aspects of his life and that it concluded incorrectly he was of bad character. Fralin had several convictions; he did not begin substance abuse counseling until after his arrest for drunk driving; he has been terminated from his job for attendance problems and refusal to work overtime; and did not attend his first revocation hearing. The imposition of a two-year sentence was not plainly unreasonable.
Second, Fralin argues that because he would receive a more lenient sentence under an amended Sentencing Guidelines policy statement, his sentence was plainly unreasonable.2 He cites no authority for his application of the amended policy statement, and nothing in the Guidelines supports his argument.3 In addition, Sec. 3553 states that the court must consider any "pertinent policy statement issued by the Sentencing Commission ... that is in effect on the date the defendant is sentenced." 18 U.S.C. § 3553(a) (5) (1988) (emphasis added).
Absent clear legislative intent, the savings clause, 1 U.S.C. § 109 (1988), bars retroactive application of a statute where such application would extinguish a penalty. United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). Although Fralin does not seek retroactive application of the amended guideline, the savings clause makes his argument meritless. That he might receive a more lenient sentence under the amended policy statement does not make his sentence plainly unreasonable.4
The sentence was proper under applicable statutes and guidelines and his sentence was not plainly unreasonable.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4
The Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by designation
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
Under Sec. 3583, the district court could revoke Fralin's release and impose a two-year prison sentence. Prior to doing so, the court must consider several factors listed in Sec. 3553 including "the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a) (1) (1988). Fralin did not allege any facts that can be construed as contesting any other Sec. 3553 factors. Nor did he argue that the court incorrectly applied the Sentencing Guidelines in effect at the time
The policy statement in effect when Fralin was sentenced provided only that " [u]pon a finding of a violation of supervised release involving new criminal conduct, other than criminal conduct constituting a petty offense, the court shall revoke supervised release." See United States Sentencing Commission Guidelines, p.s. (1987) (amended Nov. 1990), App. C. 208-219
The chapter on supervised release has been rewritten. Under a revocation table in the new chapter, Fralin would receive 6-12 months imprisonment. See U.S.S.G. Sec. 7B1.4, p.s.
Fralin relies on the rule of lenity. Thereunder, when the language of a penal statute is ambiguous, the court should choose the least harsh construction to avoid imposing penalties Congress did not intend. United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir. 1988). The rule has no application here because the statute unambiguously provided for the sentence that Fralin received. See 18 U.S.C. § 3583(e) (1988)
Fralin also argues that U.S.S.G.C. Sec. 5C1.1, provides guidance as to the reasonableness of his sentence. Section 5C1.1 provides three alternatives for how a minimum term of imprisonment may be satisfied if the minimum term in the applicable guideline range is at least one but no more than six months. He provides no authority for this court to apply Sec. 5C1.1 here
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