United States v. Eleazar Felix-Olivas , 358 F. App'x 914 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 11 2009
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. 09-50197
Plaintiff - Appellee, D.C. No. 3:07-CR-02994-JLS-
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v.
ELEAZAR FELIX-OLIVAS, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted December 9, 2009 **
Pasadena, California
Before: THOMPSON and SILVERMAN, Circuit Judges, and BOLTON,*** District
Judge.
Eleazar Felix-Olivas appeals from the 12-month sentence imposed on him as
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
a result of the revocation of his supervised release, to be served consecutively to
the 10-month sentence imposed for the underlying criminal conduct that led to the
revocation. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Mr. Felix-Olivas argues that his admission to the supervised release
violation was involuntary because he was not given a full, Rule 11-style
voluntariness colloquy regarding his rights. Next, Mr. Felix-Olivas asserts that the
district court considered improper factors in arriving at a sentence. In particular,
Appellant objects to the fact that the district court judge discussed a need for
“consequences” for his actions, which he interprets as a reference to impermissible
consideration of the underlying criminal conduct, rather than the breach of trust of
the supervised release violation. Finally, Appellant argues that a 12-month
sentence was substantively unreasonable on the facts before the court at the time of
sentencing.
This Court has held that the making of admissions at a revocation
proceeding is not the equivalent of a guilty plea, and therefore, the due process
clause does not require a full voluntariness colloquy at a revocation hearing. See
United States v. Segal, 549 F.2d 1293, 1296-1301 (9th Cir. 1977). Further, the
district court’s sentence was not based on improper factors. Given that returning to
the United States is the very “breach of trust” courts are permitted to sanction by
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revoking supervised release, the district court’s focus on “consequences” for Mr.
Felix-Olivas’s actions was not misplaced.
The record reflects that the sentence is substantively reasonable and free
from plain error. It appropriately takes into consideration the nature and timing of
the violation of supervised release.
AFFIRMED.
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