United States v. Donald Schwindt , 708 F. App'x 350 ( 2017 )

FILED
NOT FOR PUBLICATION DEC 21 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 17-30078
17-30079
Plaintiff - Appellee,
D.C. Nos. 9:08-cr-00038-DWM
v. 9:10-cr-00001-DWM
DONALD JOSEPH SCHWINDT,
MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
In these consolidated appeals, Donald Joseph Schwindt appeals the seven-
month concurrent sentences imposed following the revocation of his 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).
Schwindt argues that the district court erred when it determined that he had
violated supervised release by committing criminal trespass under Montana Code
Annotated section 45-6-203. He contends that this error resulted in a substantively
unreasonable sentence. The government rightly concedes that, because it
presented no evidence that the land was posted, it did not establish that Schwindt
had criminally trespassed. See State v. Trujillo, 180 P.3d 1153, 1156 (Mont.
2008). We nevertheless affirm.
Schwindt admits that the court correctly calculated the Guidelines range on
the basis of his commission of another Grade C violation. There is no evidence in
the record that the district court relied upon the trespass violation in reaching its
sentencing decision. Instead, the court found that the seven-month sentence was
appropriate because of Schwindt’s repeated failure to abide by the terms of his
supervised release despite his probation officer’s guidance. Under these
circumstances, the court’s error with respect to the trespassing violation was
harmless. Moreover, the below-Guidelines sentence was substantively reasonable
in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 17-30078 & 17-30079