United States v. Daniel Butcher ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50247
Plaintiff-Appellee, D.C. No. 3:21-cr-00698-TWR-1
v.
DANIEL MARK BUTCHER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Todd W. Robinson, District Judge, Presiding
Submitted April 17, 2023**
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
Daniel Mark Butcher appeals from the district court’s judgment and
challenges the 12-month sentence imposed upon the revocation of his supervised
release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Butcher’s sole contention on appeal is that the district court reversibly erred
*
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).
by failing to provide the government an opportunity to make a sentencing
argument. Butcher’s general objection to “all the procedural and substantive
deficits in his sentence” was insufficient to preserve this claim. See United States
v. Grissom, 525 F.3d 691, 694 (9th Cir. 2008). We therefore review for plain
error. See United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008). Although
the district court may have erred by failing to solicit the government’s sentencing
position, see United States v. Urrutia-Contreras, 782 F.3d 1110, 1114 (9th Cir.
2015), Butcher has not shown that the error affected his substantial rights.
Butcher’s speculation that the government would have recommended a lesser
sentence had it been given an opportunity to speak, and that the court would have
been persuaded by such a recommendation despite rejecting probation’s argument
for a lesser sentence, is insufficient to establish a reasonable probability that he
would have received a different sentence absent the error. See United States v.
Dallman, 533 F.3d 755, 762 (9th Cir. 2008); see also Waknine, 543 F.3d at 553-54(defendant did not show that the district court plainly erred in failing to give the
government an opportunity to speak at sentencing because he did not show that the
government’s remarks would have changed the court’s conclusion as to the
sentence).
AFFIRMED.
2 22-50247