NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 24 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-30147
Plaintiff - Appellee, D.C. No. 6:03-cr-00016-DWM-1
v.
MEMORANDUM*
KATHERINE MARIE GABLE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted January 13, 2011**
Seattle, Washington
Before: GRABER and M. SMITH, Circuit Judges, and BREYER,*** District
Judge.
*
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 Honorable Charles R. Breyer, District Judge for the U.S. District
Court for Northern California, San Francisco, sitting by designation.
Katherine Marie Gable appeals the district court’s revocation of her
supervised release and imposition of a fourteen-month sentence. Because the
parties are familiar with the factual and procedural history of this case, we do not
recount additional facts except as necessary to explain the decision. We affirm.
Admission of hearsay evidence during the revocation hearing did not violate
Gable’s Fifth Amendment right to confrontation because the evidence was
sufficiently reliable. See United States v. Simmons, 812 F.2d 561, 564 (9th Cir.
1987); see also United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999).
Moreover, any error was harmless, because Gable challenges only evidence
relevant to the fifth supervised release violation, and the district court stated that it
would have revoked her release even if the fifth violation had not been considered.
The district court did not err in concluding that Gable had committed a new
crime. A district court may revoke a term of supervised release if it “finds by a
preponderance of the evidence that the defendant violated a condition of
supervised release.” 18 U.S.C. § 3583(e)(3). Here, there was sufficient evidence
to prove by a preponderance of the evidence that Gable had committed a new state-
law crime in violation of the terms of her supervised release.
Nor did the district court improperly rely on punishment during sentencing.
Taken in context, the court’s reference to “punishment” properly concerned
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sanctions for Gable’s supervised release violations, not for the underlying state-law
crime. See United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006).
Finally, Gable’s sentence was not substantively unreasonable considering
the totality of the circumstances, see United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc), because Gable’s supervised release had been revoked three
times and her new violations commenced almost immediately after her release
from prison.
AFFIRMED.
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