United States v. Jose Montano-Rivas

FILED
NOT FOR PUBLICATION NOV 26 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50076

Plaintiff - Appellee, D.C. No. 3:10-cr-04836-GT

v.
MEMORANDUM*
JOSE LUIS MONTANO-RIVAS,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding

Submitted November 19, 2013**

Before: CANBY, TROTT, and THOMAS, Circuit Judges.

Jose Luis Montano-Rivas appeals from the district court’s judgment and

challenges the 24-month sentence imposed upon revocation of supervised release.

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).
 Montano-Rivas contends that the district court violated Federal Rule of

Criminal Procedure 32(i)(4)(A)(iii) by failing to provide an opportunity for the

government to present its sentencing recommendation. We review for plain error,

see United States v. Waknine, 543 F.3d 546, 552-53 (9th Cir. 2008), and find none.

As the parties’ briefs reflect, the law is unclear with respect to whether Rule

32(i)(4)(A)(iii) applies to supervised release revocation proceedings. Thus, any

error by the district court in failing to provide the government an opportunity to

speak before imposing sentence was not “plain.” See United States v. Olano. 507

U.S. 725, 734 (1993).

Montano-Rivas also contends that the district court procedurally erred by

failing to address his mitigation arguments. The record shows the district court

heard Montano-Rivas’s mitigation arguments and sufficiently explained the

sentence. See Rita v. United States, 551 U.S. 338, 358-59 (2007).

Montano-Rivas finally contends that the 24-month sentence is substantively

unreasonable. The district court did not abuse its discretion in imposing Montano-

Rivas’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The

within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.

§ 3583(e) sentencing factors and the totality of the circumstances, including

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Montano-Rivas’s criminal history and breach of the court’s trust. See id.; United

States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007).

AFFIRMED.

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