United States v. Michael Vasquez ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10268
Plaintiff-Appellee, D.C. No. 2:08-cr-00655-ROS-2
v.
MEMORANDUM*
MICHAEL VASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Submitted August 17, 2021**
Before: CHRISTEN, COLLINS, and LEE, Circuit Judges.
Michael Vasquez appeals from the district court’s order revoking supervised
release and imposing an 18-month sentence. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), and we affirm.
Vasquez contends that the district court violated his due process rights and
*
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).
Federal Rule of Criminal Procedure 32.1 by relying on the conduct underlying a
dismissed allegation during sentencing after the magistrate judge assertedly
assured Vasquez that the dismissed allegation would not impact his sentence. We
disagree.1 The court provided Vasquez with written notice of the alleged
violations, properly revoked supervised release on the basis of the violation to
which Vasquez admitted, and dismissed the remaining allegations. Contrary to
Vasquez’s assertion, the magistrate judge did not represent that the court would not
consider relevant conduct when determining the sentence. To the extent Vasquez
contends that his admission to a violation was not knowing or voluntary, see
United States v. Stocks, 104 F.3d 308, 312 (9th Cir. 1997), the record belies this
argument. Indeed, Vasquez’s own sentencing papers reflected his understanding
that the district court would be “in the best position to weigh the events of June
12”—i.e., the conduct underlying the dismissed allegation—“in the totality of the
circumstances.” (ER 13.) The court’s consideration of the dismissed allegation in
the disposition report was permissible and did not deprive Vasquez of due process.
See 18 U.S.C. § 3583(e) (instructing the court to consider certain 18 U.S.C.
§ 3553(a) sentencing factors in determining the revocation sentence); United States
v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009) (district court is “largely
1
We need not resolve the parties’ dispute as to the appropriate standard of
review because our conclusion is the same under any standard.
2 20-10268
unlimited as to the kind of information” it can consider at sentencing as long as the
information contains some “minimal indicium of reliability” (internal quotations
omitted)).
Vasquez also contends that his 18-month sentence is substantively
unreasonable because the court assertedly placed undue emphasis on the
seriousness of the criminal conduct described in a dismissed allegation in the
disposition report, in violation of United States v. Simtob, 485 F.3d 1058 (9th Cir.
2007). The district court did not abuse its discretion. See Gall v. United States,
552 U.S. 38, 51 (2007). As we have stated, the court did not err by considering the
conduct underlying the dismissed allegation and the record does not support the
contention that the court imposed the sentence “solely, or even primarily” based on
the severity of the conduct described in the dismissed allegation. Simtob, 485 F.3d
at 1063. Rather, the court properly considered that conduct as a factor
“contributing to the severity of [Vasquez’s] breach of trust,” as part of a “full
review of [his] history and [his] likelihood of repeating that history.” Id. The
sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) factors and
the totality of the circumstances. See Gall, 552 U.S. at 51. Contrary to Vasquez’s
suggestion, the record also reflects that the court considered Vasquez’s mitigating
facts and arguments.
AFFIRMED.
3 20-10268