United States v. Diamante Alfred ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10244
Plaintiff-Appellee, D.C. No.
1:12-cr-00160-LJO-SKO-1
v.
DIAMANTE ALFRED, AKA Alfred, AKA MEMORANDUM*
Diamante Deshon,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Diamante Alfred appeals from the district court’s judgment and challenges
the 60-month sentence imposed upon his second revocation of 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 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). Accordingly, Alfred’s
request for oral argument is denied.
Alfred contends that the district court improperly based the sentence on an
earlier promise to impose the statutory maximum term if Alfred violated
supervised release, rather than an individualized sentencing determination. He also
contends that the district court’s purported predetermination of his sentence
required the court’s recusal under 28 U.S.C. § 455 and the Due Process Clause.
We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and conclude that there is none. Though the district court
referred during the revocation hearing to its earlier promise that a violation of
supervised release would result in imposition of the statutory maximum term, the
district court considered the 18 U.S.C. § 3583(e) factors and properly based the
sentence on the need to protect the public, Alfred’s multiple breaches of the court’s
trust, and a determination that Alfred was not amenable to supervision. See United
States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007). Further, contrary to
Alfred’s contention, the district court’s explanation of its decision to impose the
statutory maximum sentence was adequate. See United States v. Carty, 520 F.3d
984, 992-93 (9th Cir. 2008) (en banc). This record does not support Alfred’s
argument that the court’s decision to impose the 60-month sentence was based on
improper bias, and the district judge did not plainly err by failing to recuse himself.
See United States v. Rangel, 697 F.3d 795, 804 (9th Cir. 2012).
Alfred next contends that the sentence is substantively unreasonable. The
2 19-10244
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The above-Guidelines sentence is substantively reasonable in light of
the § 3583(e) sentencing factors and totality of the circumstances, including
Alfred’s poor performance on supervision and the nature of his violations. See
Gall, 552 U.S. at 51.
AFFIRMED.
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