FILED
NOT FOR PUBLICATION JUN 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50417
Plaintiff - Appellee, D.C. No. 3:15-cr-07040-BEN
v.
MEMORANDUM*
PONO NAKANEOKEKAIK PAU, a.k.a.
Pono Pau,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Pono Nakaneokekaik Pau appeals from the district court’s judgment and
challenges the 12-month sentence imposed upon his second 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).
Pau contends that the district court procedurally erred by failing to consider
the 18 U.S.C. § 3583(e) sentencing factors, and instead imposing a predetermined
sentence based on a promise it made at an earlier sentencing hearing. We reject
this contention. The record reflects that the court considered the relevant section
3583(e) sentencing factors, as well as the parties’ sentencing positions, prior to
imposing sentence. See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)
(en banc). Moreover, while the court referenced the “promise” it made at the
earlier sentencing hearing, it did not impose sentence on that basis. To the
contrary, the court stated that it would “cut [Pau] a little slack” and not impose the
sentence it “promised” at the first sentencing hearing.
Pau also contends that the district court procedurally erred by considering
the need to punish the conduct underlying his revocation, an impermissible
sentencing factor. 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 court considered only permissible sentencing factors and imposed the
sentence in order to sanction Pau’s breach of the court’s trust. See United States v.
Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007).
AFFIRMED.
2 15-50417