United States v. David Derryberry ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-30006
Plaintiff-Appellee, D.C. No. 9:11-cr-00015-DWM-2
v.
MEMORANDUM*
DAVID DERRYBERRY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
David Derryberry appeals from the district court’s judgment and challenges
the 12-month sentence imposed upon the fifth revocation of his supervised release.
We have jurisdiction under 28 U.S.C § 1291, and we affirm.
Derryberry contends that his sentence is substantively unreasonable because
*
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).
he was struggling with addiction. He also argues that the district judge may have
relied upon the impermissible factor of “just punishment” when imposing a
custodial sentence four months longer than the one recommended by the magistrate
judge. The district judge, however, expressly noted that just punishment is an
improper sentencing consideration on revocation, see 18 U.S.C. § 3583(e); United
States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006), and clarified that he was
not relying on that factor. Although the magistrate judge recommended an 8-
month term of imprisonment followed by 18 months of supervised release, the
record supports the district judge’s conclusion that a lengthier custodial term and
termination of any further supervision was appropriate. The within-Guidelines
sentence is substantively reasonable under the totality of the circumstances and the
18 U.S.C. § 3583(e) factors, including Derryberry’s repeated breaches of the
court’s trust and the risk he poses to the community. See Gall v. United States, 552
U.S. 38, 51 (2007); Miqbel, 444 F.3d at 1182.
AFFIRMED.
2 23-30006