FILED
NOT FOR PUBLICATION APR 11 2011
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. 10-50274
Plaintiff - Appellee, D.C. No. 3:06-cr-02371-BEN
v.
MEMORANDUM *
CHRISTIAN WILLIAMS GARCIA-
GARCIA, a.k.a. Sergio Christian Garcia-
Garcia,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Christian Williams Garcia-Garcia appeals from the district court’s judgment
revoking his supervised release, and the resulting 18-month sentence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Garcia contends that the revocation procedures set forth in 18 U.S.C.
§ 3583(e)(3) violate his rights under the Fifth and Sixth Amendments, because the
sentence exceeds the statutory maximum the court can impose under the
Guidelines, and because the allegation was not presented to either a grand or petit
jury. This contention is foreclosed. See United States v. Huerta-Pimental, 445
F.3d 1220, 1224-1225 (9th Cir. 2006); see also United States v. Patterson, 230
F.3d 1168, 1170-71 (9th Cir. 2000) (the revocation of supervised release is a
punishment imposed for the original offense).
Garcia also contends that the imposition of a term of imprisonment upon the
revocation of supervised release violates both the double jeopardy clause of the
Fifth Amendment, and the Separation of Powers doctrine. This contention is also
foreclosed. See United States v. Soto-Olivas, 44 F.3d 788, 789-90 (9th Cir. 1995);
see also United States v. Mejia-Sanchez, 172 F.3d 1172, 1175 (9th Cir. 1999).
Garcia next contends that the district court relied on impermissible factors
when imposing the revocation sentence. The record reflects that the court did not
rely on any factors specifically excluded by § 3583(e), but focused instead on
Garcia’s breach of the court’s trust. See United States v. Miqbel, 444 F.3d 1173,
1181-83 (9th Cir. 2006). The record further reflects that the court considered the
appropriate sentencing factors under § 3553(a), and provided an adequate
2 10-50274
explanation for the sentence imposed. The district court did not procedurally err,
and the sentence was substantively reasonable under the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).
Finally, Garcia contends that the district court should have recused itself
based on comments made at the original sentencing hearing that revealed the
court’s bias against him. The district court did not abuse its discretion by declining
to recuse itself. See 28 U.S.C. § 455(b)(1); see also United States v. Monaco, 852
F.2d 1143, 1147 (9th Cir. 1988).
AFFIRMED.
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