United States v. Wayne McDuffie , 633 F. App'x 494 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30100
Plaintiff - Appellee, D.C. No. 2:08-cr-00102-RHW
v.
MEMORANDUM*
WAYNE D. MCDUFFIE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Wayne D. McDuffie appeals the district court’s revocation of supervised
release and the 24-month sentence imposed thereupon. 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).
McDuffie contends that remand is required because the district court failed
to address him personally to obtain a waiver of his right to a contested hearing
under Federal Rule of Criminal Procedure 32.1(b). We disagree. Although it was
defense counsel who informed the district court that McDuffie wished to admit the
violations of supervised release, McDuffie himself signed an acknowledgment of
his Rule 32.1(b) rights prior to the hearing and repeatedly took responsibility for
his violation conduct during his allocution. Thus, the record shows that
McDuffie’s waiver of his right to a contested hearing and admission were
knowing, intelligent, and voluntary. See United States v. Stocks, 104 F.3d 308, 312
(9th Cir. 1997).
McDuffie also contends that the district court procedurally erred by failing
to calculate the Guidelines range, keep the Guidelines range in mind throughout its
sentencing analysis, respond to his mitigating arguments, and sufficiently explain
the sentence. We review for plain error. See United States v. Valencia-Barragan,
608 F.3d 1103, 1108 (9th Cir. 2010). Although the district court erred when it
failed to calculate the Guidelines range, it sufficiently explained its reasons for
rejecting McDuffie’s mitigating arguments and imposing the within-Guidelines,
statutory-maximum sentence. See United States v. Carty, 520 F.3d 984, 991-93
(9th Cir. 2008) (en banc). In light of the court’s explanation, we conclude that
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McDuffie has failed to show a reasonable probability that he would have received
a different sentence if the court had calculated the Guidelines range on the record.
See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
AFFIRMED.
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