FILED
NOT FOR PUBLICATION JUL 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50605
Plaintiff - Appellee, D.C. No. 3:08-cr-03094-LAB
v.
MEMORANDUM *
RICARDO MORGUTIA, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Ricardo Morgutia, Jr., appeals from the twelve-month sentence imposed
upon revocation of supervised release. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Morgutia contends that the district court committed plain procedural error by
*
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).
relying on a sentencing factor not permissibly considered upon revocation of
supervised release, failing to calculate his Guidelines range, and failing to consider
the applicable factors set forth at 18 U.S.C. § 3553(a). The record indicates that
the district court did not rely on impermissible sentencing factors. See United
States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (“[A]t a revocation
sentencing, a court may appropriately sanction a violator for his ‘breach of
trust[.]’”).
In addition, Morgutia has not shown that the district court’s failure to
expressly calculate the Guidelines range affected Morgutia’s substantial rights.
Defense counsel accurately told the court that the Guidelines range was four to ten
months, the government did not dispute it, and the court said that it was departing
upward from this range, all of which demonstrate that the court consciously
considered the proper Guidelines during the sentencing process. Cf. United States
v. Hammons, 558 F.3d 1100, 1105-06 (9th Cir. 2009) (substantial rights affected
where court did not calculate Guidelines range and probation report included
incorrect criminal history category); United States v. Waknine, 543 F.3d 546, 554
(9th Cir. 2008) (failure to calculate Guidelines range was reversible plain error in
combination with other procedural errors). Moreover, under the circumstances, the
court sufficiently explained its reasons for the sentence it imposed. See United
2 09-50605
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc); cf. Hammons, 558
F.3d at 1104 (reversing where court provided no explanation for sentence);
Waknine, 543 F.3d at 554 (same).
AFFIRMED.
3 09-50605