NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50252
Plaintiff - Appellee, D.C. No. 2:13-cr-00352-MWF
v.
MEMORANDUM*
MELVIN FOSTER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted September 21, 2015**
Before: REINHARDT, LEAVY, and BERZON, Circuit Judges.
Melvin Foster appeals from the district court’s judgment and challenges the
21-month sentence imposed upon revocation of supervised release. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Foster contends that the district court erred by failing to consider his
*
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).
sentencing arguments and by improperly focusing on the seriousness of his original
offense and the offense underlying the revocation. We review for plain error, see
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find
none. The record reflects that the district court considered Foster’s arguments
and did not base the sentence on any improper considerations. See United States
v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007).
Foster next contends that the district court erred by basing the sentence on
clearly erroneous facts. Though the court incorrectly stated that Foster’s
underlying conviction was a Class A felony, Foster has not shown a reasonable
probability that he would have received a different sentence absent the error. See
United States v. Christensen, 732 F.3d 1094, 1101-02 (9th Cir. 2013). Moreover,
to the extent that the district court relied on the government’s sentencing argument
in imposing the sentence, Foster has not shown that the government asserted any
clearly erroneous facts.
Finally, Foster contends that the sentence is substantively unreasonable.
The district court did not abuse its discretion. See Gall v. United States, 552 U.S.
38, 51 (2007). The below-Guidelines sentence is substantively reasonable in light
of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances,
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including Foster’s repeated breaches of the court’s trust and the need to protect the
public. See Gall, 552 U.S. at 51.
All pending motions are denied.
AFFIRMED.
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