NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50633
Plaintiff - Appellee, D.C. No. 3:08-cr-01001-LAB
v.
MEMORANDUM*
ANIBAL DIAZ-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Anibal Diaz-Rodriguez appeals from the district court’s judgment and
challenges the 24-month custodial sentence and 12-month term of supervised
release 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).
Diaz-Rodriguez claims that the court erred by delaying his post-revocation
sentencing hearing until after he was sentenced in his new criminal case. Under
the circumstances, we conclude that the delay was not unreasonable. See Fed. R.
Crim. P. 32.1(b)(2); United States v. Reyes-Solosa, 761 F.3d 972, 976-77 (9th Cir.
2014) (“[A] district court can continue post-revocation sentencing for a reasonable
time to consider a supervised releasee’s sentence in the underlying criminal
proceeding as part of evaluating the supervised releasee’s breach of trust.”).
Accordingly, we also reject Diaz-Rodriguez’s contention that the delay violated his
right to due process. See Reyes-Solosa, 761 F.3d at 977 n.4.
Diaz-Rodriguez next contends that the district court procedurally erred by
considering an impermissible sentencing factor, namely, the adequacy of the
aggregate sentence for the new criminal conviction and the supervised release
revocation. We disagree. See id. at 975-76 (“A district court imposing a
post-revocation sentence may want to defer the revocation hearing to consider the
entire picture, including the sentence imposed for the underlying crime that caused
the revocation.”).
Finally, Diaz-Rodriguez contends that the sentence is substantively
unreasonable in light of the alleged procedural errors and because it is excessive.
2 13-50633
The district court did not abuse its discretion in imposing Diaz-Rodriguez’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is
substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and
the totality of the circumstances, including Diaz-Rodriguez’s criminal and
immigration history and his breach of the court’s trust. See Gall, 552 U.S. at 51;
United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007) (at a revocation
sentencing, the district court can sanction a violator for his breach of trust).
AFFIRMED.
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