United States v. Dwayne Lauka , 671 F. App'x 617 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30371
Plaintiff-Appellee, D.C. No. 2:00-cr-00368-JCC
v.
MEMORANDUM*
DWAYNE MICHAEL LAUKA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Dwayne Michael Lauka appeals from the district court’s judgment and
challenges the 35-month term of supervised release imposed upon revocation of
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Lauka contends that his term of supervised release exceeds the maximum
*
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).
period authorized by 18 U.S.C. § 3583(h). Specifically, he claims that the district
court failed to reduce his supervised release term by 24 months to reflect the 24-
month term of imprisonment that he served upon revocation of his supervised
release in the Districts of Oregon and Eastern California. We disagree. Lauka’s
sentence in the instant case is based on his violations of the supervised release
conditions imposed following his conviction in the Western District of
Washington; he is not entitled to credit for the post-revocation sentence imposed in
connection with his convictions in the Districts of Oregon and Eastern California.
See United States v. Hertler, 776 F.3d 680, 684 (9th Cir. 2015) (section 3583(h)’s
reference to “any term of imprisonment” refers to the post-revocation terms of
imprisonment imposed with respect to the same underlying offense).
Lauka next contends that the district court failed to consider the sentencing
factors and explain adequately its reasons for imposing the term of supervised
release. We review for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district
court considered only the proper 18 U.S.C. § 3583(e) sentencing factors and
adequately explained its reasons for determining that a term of supervised release
was warranted. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
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banc). Moreover, the sentence is not an abuse of the district court’s discretion in
light of the section 3583(e) sentencing factors and the totality of the circumstances,
including Lauka’s extensive criminal history and breach of the court’s trust. See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Miqbel, 444 F.3d
1173, 1182 (9th Cir. 2006).
AFFIRMED.
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