NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30248
Plaintiff-Appellee, D.C. No.
6:15-cr-00013-CCL-1
v.
RIAN WAYNE BREIDENBACH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Submitted December 7, 2021**
Seattle, Washington
Before: McKEOWN, CHRISTEN, and BADE, Circuit Judges.
Rian Wayne Breidenbach appeals from the district court’s revocation of
supervised release and imposition of an eighteen-month term of imprisonment
followed by lifetime supervised release. Breidenbach admitted to violating one
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
supervised-release condition and was found guilty of violating a second. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo whether a defendant received sufficient notice to satisfy
due process and Rule 32.1 of the Federal Rules of Criminal Procedure. United States
v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998).
Breidenbach received sufficient notice of the facts underlying the district
court’s supervised-release revocation sentence to satisfy due process and Rule 32.1.
Breidenbach’s revocation petition detailed (1) the specific terms of supervised
release that he was either found to have violated or admitted to violating, and (2) the
facts underlying those violations, including the general dates of Breidenbach’s
violations, the location where they occurred, and the specific conduct involved. This
information was sufficient to provide Breidenbach notice of the facts the court would
consider at sentencing. See United States v. Tham, 884 F.2d 1262, 1265 (9th Cir.
1989). The probation officer’s reference at the revocation hearing to Breidenbach’s
treatment failures does not implicate Breidenbach’s notice rights. Instead, the record
reflects that the court rested its sentencing decision on the similarity between the
manner and content of Breidenbach’s supervised release violations and the conduct
underlying Breidenbach’s original conviction and the recency of the violations to
Breidenbach’s commencement of supervised release. These facts were described in
sufficient detail in Breidenbach’s revocation petition to satisfy due process and Rule
2
32.1. Id. Further, we discern no indication in the record that the court would have
reduced its sentence had the probation officer declined to mention Breidenbach’s
treatment failures at the sentencing hearing. Rather, the district court premised its
sentence on the “egregious” nature of Breidenbach’s violation. See United States v.
Ali, 620 F.3d 1062, 1074 (2010).
Nor did the district court impermissibly consider rehabilitation as a basis for
Breidenbach’s sentence. See Tapia v. United States, 564 U.S. 319, 335 (2011) (“[A]
court may not impose or lengthen a prison sentence to enable an offender to complete
a treatment program or otherwise to promote rehabilitation.”). The district court’s
comments do not indicate that it imposed its sentence for the purpose of facilitating
Breidenbach’s rehabilitation. Instead, the court considered the relevant § 3553(a)
factors—the nature and circumstances of the offense, Breidenbach’s history and
characteristics, the need to deter him from further criminal conduct, the need to
protect the community from future crimes by him, the need to continue to provide
him with needed correctional treatment in the most effective manner, and the
relevant policy statements issued by the Sentencing Commission. See 18 U.S.C.
§§ 3565(a), 3583(e). The court also noted that Breidenbach’s conduct in violating
his supervised release conditions was exceptionally similar to the conduct that
resulted in his conviction. See 18 U.S.C. §§ 3583(e), 3553(A)(2)(C) (listing
3
sentencing factors on revocation of supervised release and including “to protect the
public from further crimes of the defendant”).
Finally, Breidenbach’s sentence was substantively reasonable. See Gall v.
United States, 552 U.S. 38, 47 (2007). The eighteen-month prison sentence
exceeded the Sentencing Guidelines Policy Statement recommendation but was
below the twenty-four-month statutory maximum. U.S. SENTENCING GUIDELINES
MANUAL § 7B1.4(a) (U.S. SENT’G COMM’N 2018); 18 U.S.C. § 3583(e)(3). The
lifetime supervised-release condition was within the Sentencing Guidelines
recommendation and the statutory range. U.S. SENTENCING GUIDELINES MANUAL §
7B1.3(g)(2) (U.S. SENT’G COMM’N 2018); 18 U.S.C. § 3583(k). Considering the
totality of the circumstances, the district court did not abuse its discretion in issuing
Breidenbach’s sentence. See Gall, 522 U.S. at 51.
AFFIRMED.
4