United States v. Elvis Davis

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                                                                           FILED
                             NOT FOR PUBLICATION                           AUG 18 2014

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10591

                Plaintiff - Appellee,            D.C. No. 3:89-cr-00106-SRB

  v.
                                                 MEMORANDUM*
ELVIS DAVIS,

                Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                     Mark W. Bennett, District Judge, Presiding**

                             Submitted August 13, 2014***

Before:         SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

       Elvis Davis appeals from the 42-month supervised release term imposed

upon revocation of supervised release. We have jurisdiction under 28 U.S.C.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291, and we affirm.

      Davis contends that the district court violated 18 U.S.C. § 3583(e) and the

Guidelines policy statements by imposing the sentence for punitive purposes, and

by placing undue weight on his criminal history. Contrary to Davis’s contention,

he had an opportunity to assert these objections in the district court and failed to do

so. Our review, therefore, is for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and we find none.

      The record reflects that the district court did not impose sentence on the

basis of the contested revocation allegation. Although the court did consider

Davis’s original crime, it did so in the context of the section 3583(e) sentencing

factors, and did not impose sentence for punitive purposes. See United States v.

Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007) (at a revocation sentencing, district

court may consider the criminal history of the violator because section 3583(e)

specifically directs courts to consider the history and characteristics of the

defendant). Finally, the record does not support Davis’s contention that the court

placed undue weight on his criminal history in imposing the 42-month supervised

release term.

      AFFIRMED.




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