United States v. Harold Creighton, Jr.

FILED
NOT FOR PUBLICATION JUN 21 2013

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. 12-10625

Plaintiff - Appellee, D.C. No. 2:12-cr-50103-NVW

v.
MEMORANDUM *
HAROLD ALLEN CREIGHTON, Jr.,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding

Submitted June 18, 2013 **

Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

Harold Allen Creighton, Jr., appeals from the district court’s judgment and

challenges the 14-month sentence imposed upon revocation of supervised release.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Creighton contends that the district court failed to explain the sentence and

*
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).
why it rejected his argument that he should be sentenced to a shorter term because

of his overincarceration on the underlying offense. Creighton also contends that

the district court violated Federal Rule of Criminal Procedural 32(i)(3)(B) by

failing to rule on the extent of his overincarceration and whether his

overincarceration had any effect on the sentence imposed. The parties dispute the

standard of review that applies to Creighton’s claims. We need not resolve this

dispute because even on de novo review, Creighton’s claims fail.

The record reflects that the court took Creighton’s argument into

consideration and adequately explained the sentence. See United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008) (en banc). Assuming, without deciding, that

Rule 32(i)(3)(B) applies to revocation of supervised release proceedings, the

court’s obligations under Rule 32(i)(3)(B) were never triggered because the district

court determined that any error in Creighton’s underlying sentence had no bearing

upon the appropriate term to be imposed for Creighton’s violation of supervised

release. See United States v. Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 2007) (Rule

32(i)(3)(B) “is limited to factual disputes which affect the temporal term of the

sentence the district court imposes”).

AFFIRMED.

2 12-10625