USA V. PAWEL SZKUTNIK, No. 17-30088 (9th Cir. 2018)
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FILED NOT FOR PUBLICATION FEB 16 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 17-30088 D.C. No. 2:06-cr-00212-JLR v. MEMORANDUM* PAWEL SEBASTIAN SZKUTNIK, Defendant-Appellant. Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding Submitted February 13, 2018** Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges. Pawel Sebastian Szkutnik appeals from the district court’s judgment and challenges the 16-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Szkutnik contends that the district court procedurally erred by failing to use * 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 Guidelines range as the starting point at sentencing, instead sentencing him based on a determination made at a previous hearing. Szkutnik also argues that the court failed to explain the sentence adequately. 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 court considered the uncontested Guidelines range, but concluded that an above-Guidelines sentence was warranted in light of Szkutnik’s poor performance on supervised release. The court’s explanation was sufficient. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, the court’s imposition of a 16-month sentence belies Szkutnik’s argument that the court placed undue reliance on its remark at a prior revocation hearing that any future violations would result in an 18-month sentence. Szkutnik 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 16-month sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including Szkutnik’s history on supervised release and failure to be deterred by prior prison terms. See Gall, 552 U.S. at 51. AFFIRMED. 2 17-30088
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