FILED
NOT FOR PUBLICATION APR 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10384
Plaintiff - Appellee, D.C. No. 2:06-cr-00186-PMP-
PAL-2
v.
FREDERICK JOHN RIZZOLO, AKA MEMORANDUM *
Rick Rizzolo,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted March 19, 2012
Las Vegas, Nevada
Before: CLIFTON, BYBEE, and N.R. SMITH, Circuit Judges.
Frederick Rizzolo appeals the final judgment in his criminal case for
violation of the terms and conditions of his probation. The court revoked his
supervised release and imposed a sentence of nine months’ incarceration followed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
by twenty-four months of supervised release. We have jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm.
1. The district court’s decision to allow a statement from the Henrys’ lawyer
on their behalf was not an abuse of discretion, even though the Henrys did not
qualify as a statutorily-recognized “victim” under 18 U.S.C. § 3771 (the Crime
Victims’ Rights Act, “CVRA”).
At sentencing, the district court has a wide range of discretion in admitting
whatever evidence it deems relevant. See Nichols v. United States, 511 U.S. 738,
747 (1994). Indeed, “under the Guidelines, a sentencing judge ‘may consider,
without limitation, any information concerning the background, character and
conduct of the defendant, unless otherwise prohibited by law.’” United States v.
Jones, 114 F.3d 896, 898 (9th Cir. 1997) (emphasis added) (quoting U.S.S.G.
§ 1B1.4).
None of the authorities relied upon by Rizzolo prohibited the Henrys’ lawyer
from making a statement. The CVRA, 18 U.S.C. § 3771, and Rule 32(i) of the
Federal Rules of Criminal Procedure merely mandate situations where the district
court must allow individuals to be heard. However, these provisions say nothing
about prohibiting individuals from being heard. Therefore, while Rizzolo is
correct that the district court was not required to allow the Henrys’ lawyer to speak
2
on their behalf as victims under the CVRA, Rizzolo is incorrect when he argues
that the district court still had no discretion to allow the lawyer to be heard.
The district court carefully explained its reasons for allowing the Henrys’
lawyer to make a statement. Because those reasons were not implausible or
illogical, the district court did not abuse its discretion. See United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
2. Even if the district court did abuse its discretion, Rizzolo suffered no
prejudice from this error. Rizzolo does not challenge the district court’s findings
that he committed the alleged acts violating the terms and conditions of his
probation. Rizzolo also does not claim that these facts were insufficient to support
the district court’s revocation decision under the “preponderance” standard. See 18
U.S.C. § 3583(e). In addition, the record does not indicate that the district court
judge relied on the plaintiffs’ counsel’s statements in making its sentencing
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determination. Accordingly, any error Rizzolo suffered regarding this statement
was not prejudicial.1
AFFIRMED.
1
Under Federal Rule of Appellate Procedure 28(j), Rizzolo filed a letter
arguing that, in United States v. Grant, 664 F.3d 276, 282 (9th Cir. 2011), we
applied the rule from Tapia v. United States, __ U.S. __, 131 S. Ct. 2382 (2011) to
prohibit the district court from considering retribution as a purpose for imprisoning
someone for violating conditions of supervised release. Rule 28(j) letters may
include additional authorities discovered after the filing of the brief. Fed. R. App.
P. 28(j). However, a Rule 28(j) letter “cannot raise a new issue” that was not
addressed in the briefs. United States v. LaPierre, 998 F.2d 1460, 1466 n.5 (9th
Cir. 1993). Thus, the issue Rizzolo raised is not properly before us, because it
contained additional argument never discussed in either his opening or reply brief.
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