United States v. Shaun Lertswan

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 18 2015

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 14-10156

Plaintiff - Appellee, D.C. No. 1:08-cr-00166-LJO

v.
MEMORANDUM*
SHAUN LERTSWAN,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Submitted March 10, 2015**

Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.

Shaun Lertswan appeals from the district court’s judgment and challenges

the two-year sentence imposed upon 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).
 Lertswan contends that the district court procedurally erred by failing to

consider the 18 U.S.C. § 3583(e) sentencing factors, instead basing the sentence

exclusively on a promise made to him by the court at an earlier sentencing hearing.

He also argues that the district court erred by failing to explain the extent of its

upward variance from the Guidelines range except by reference to that promise.

Because Defendant did not raise these objections before the district court, we

review for plain error. See United States v. Valencia-Barragan, 608 F.3d 1103,

1108 (9th Cir. 2010). Contrary to Lertswan’s argument, the record reflects that the

district court considered the parties’ arguments and the statutory sentencing factors

before imposing sentence. The court imposed sentence on the basis of Lertswan’s

breach of the court’s trust, a permissible sentencing factor, and its explanation of

the sentence was legally sufficient. See United States v. Carty, 520 F.3d 984, 992

(9th Cir. 2008) (en banc) (“The district court need not tick off each of the §

3553(a) factors to show that it has considered them.”); United States v. Simtob, 485

F.3d 1058, 1062 (9th Cir. 2007) (at a revocation sentencing, the court may sanction

the violator for his breach of trust).

Lertswan next contends that his sentence is substantively unreasonable. The

district court did not abuse its discretion in imposing Lertswan’s sentence. See

Carty, 520 F.3d at 993. The sentence is substantively reasonable in light of the

2 14-10156
section 3583(e) sentencing factors and the totality of circumstances, including

Lertswan’s violation history. See Carty, 520 F.3d at 993; Simtob, 485 F.3d at

1062-63.

AFFIRMED.

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