United States v. Christian Garcia-Garcia , 426 F. App'x 504 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             APR 11 2011
    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. 10-50274
    Plaintiff - Appellee,             D.C. No. 3:06-cr-02371-BEN
    v.
    MEMORANDUM *
    CHRISTIAN WILLIAMS GARCIA-
    GARCIA, a.k.a. Sergio Christian Garcia-
    Garcia,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Roger T. Benitez, District Judge, Presiding
    Submitted April 5, 2011 **
    Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
    Christian Williams Garcia-Garcia appeals from the district court’s judgment
    revoking his supervised release, and the resulting 18-month sentence. 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).
    Garcia contends that the revocation procedures set forth in 
    18 U.S.C. § 3583
    (e)(3) violate his rights under the Fifth and Sixth Amendments, because the
    sentence exceeds the statutory maximum the court can impose under the
    Guidelines, and because the allegation was not presented to either a grand or petit
    jury. This contention is foreclosed. See United States v. Huerta-Pimental, 
    445 F.3d 1220
    , 1224-1225 (9th Cir. 2006); see also United States v. Patterson, 
    230 F.3d 1168
    , 1170-71 (9th Cir. 2000) (the revocation of supervised release is a
    punishment imposed for the original offense).
    Garcia also contends that the imposition of a term of imprisonment upon the
    revocation of supervised release violates both the double jeopardy clause of the
    Fifth Amendment, and the Separation of Powers doctrine. This contention is also
    foreclosed. See United States v. Soto-Olivas, 
    44 F.3d 788
    , 789-90 (9th Cir. 1995);
    see also United States v. Mejia-Sanchez, 
    172 F.3d 1172
    , 1175 (9th Cir. 1999).
    Garcia next contends that the district court relied on impermissible factors
    when imposing the revocation sentence. The record reflects that the court did not
    rely on any factors specifically excluded by § 3583(e), but focused instead on
    Garcia’s breach of the court’s trust. See United States v. Miqbel, 
    444 F.3d 1173
    ,
    1181-83 (9th Cir. 2006). The record further reflects that the court considered the
    appropriate sentencing factors under § 3553(a), and provided an adequate
    2                                     10-50274
    explanation for the sentence imposed. The district court did not procedurally err,
    and the sentence was substantively reasonable under the totality of the
    circumstances. See Gall v. United States, 
    552 U.S. 38
    , 51 (2007); see also United
    States v. Carty, 
    520 F.3d 984
    , 991-93 (9th Cir. 2008) (en banc).
    Finally, Garcia contends that the district court should have recused itself
    based on comments made at the original sentencing hearing that revealed the
    court’s bias against him. The district court did not abuse its discretion by declining
    to recuse itself. See 
    28 U.S.C. § 455
    (b)(1); see also United States v. Monaco, 
    852 F.2d 1143
    , 1147 (9th Cir. 1988).
    AFFIRMED.
    3                                    10-50274