USA V. DWAYNE LAUKA, No. 15-30371 (9th Cir. 2016)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 19 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. U.S. COURT OF APPEALS No. 15-30371 D.C. No. 2:00-cr-00368-JCC MEMORANDUM* DWAYNE MICHAEL LAUKA, Defendant-Appellant. Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding Submitted December 14, 2016** Before: WALLACE, LEAVY, and FISHER, Circuit Judges. Dwayne Michael Lauka appeals from the district court’s judgment and challenges the 35-month term of supervised release imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Lauka contends that his term of supervised release exceeds the maximum * 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). period authorized by 18 U.S.C. § 3583(h). Specifically, he claims that the district court failed to reduce his supervised release term by 24 months to reflect the 24month term of imprisonment that he served upon revocation of his supervised release in the Districts of Oregon and Eastern California. We disagree. Lauka’s sentence in the instant case is based on his violations of the supervised release conditions imposed following his conviction in the Western District of Washington; he is not entitled to credit for the post-revocation sentence imposed in connection with his convictions in the Districts of Oregon and Eastern California. See United States v. Hertler, 776 F.3d 680, 684 (9th Cir. 2015) (section 3583(h)’s reference to “any term of imprisonment” refers to the post-revocation terms of imprisonment imposed with respect to the same underlying offense). Lauka next contends that the district court failed to consider the sentencing factors and explain adequately its reasons for imposing the term of supervised release. 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 only the proper 18 U.S.C. § 3583(e) sentencing factors and adequately explained its reasons for determining that a term of supervised release was warranted. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en 2 15-30371 banc). Moreover, the sentence is not an abuse of the district court’s discretion in light of the section 3583(e) sentencing factors and the totality of the circumstances, including Lauka’s extensive criminal history and breach of the court’s trust. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006). AFFIRMED. 3 15-30371
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