USA V. MELVIN FOSTER, No. 14-50252 (9th Cir. 2015)
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FILED NOT FOR PUBLICATION SEP 23 2015 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. U.S. COURT OF APPEALS No. 14-50252 D.C. No. 2:13-cr-00352-MWF MEMORANDUM* MELVIN FOSTER, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding Submitted September 21, 2015** Before: REINHARDT, LEAVY, and BERZON, Circuit Judges. Melvin Foster appeals from the district court’s judgment and challenges the 21-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Foster contends that the district court erred by failing to consider his * 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). sentencing arguments and by improperly focusing on the seriousness of his original offense and the offense underlying the revocation. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district court considered Foster’s arguments and did not base the sentence on any improper considerations. See United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007). Foster next contends that the district court erred by basing the sentence on clearly erroneous facts. Though the court incorrectly stated that Foster’s underlying conviction was a Class A felony, Foster has not shown a reasonable probability that he would have received a different sentence absent the error. See United States v. Christensen, 732 F.3d 1094, 1101-02 (9th Cir. 2013). Moreover, to the extent that the district court relied on the government’s sentencing argument in imposing the sentence, Foster has not shown that the government asserted any clearly erroneous facts. Finally, Foster 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 below-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, 2 14-50252 including Foster’s repeated breaches of the court’s trust and the need to protect the public. See Gall, 552 U.S. at 51. All pending motions are denied. AFFIRMED. 3 14-50252
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