United States v. Nathan Souza

FILED
NOT FOR PUBLICATION AUG 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30290
Plaintiff - Appellee, D.C. No. 9:10-cr-00027-DWM-1
v.
MEMORANDUM *
NATHAN KEKOA SOUZA,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-30291
Plaintiff - Appellee, D.C. No. 9:02-cr-00040-DWM-1
v.
MEMORANDUM *
NATHAN KEKOA SOUZA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted August 8, 2012
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN, GRABER, and RAWLINSON, Circuit Judges.
Appellant Nathan Kekoa Souza challenges the district court’s revocation of
his supervised release and the sentence imposed. We have jurisdiction pursuant to
18 U.S.C. § 1291, and affirm the district court.
The district court did not abuse its discretion when it relied on hearsay
evidence to find that Souza violated his supervised release conditions. The
prosecution’s interest in not putting a Minnesota resident on the stand outweighed
Souza’s interest in cross-examining that witness because the hearsay evidence was
corroborated by multiple witnesses and additional evidence. See United States v.
Hall, 419 F.3d 980, 987 (9th Cir. 2005) (concluding that corroborated testimony
was reliable).
There was sufficient evidence to support the district court’s finding that
Souza violated his supervised release conditions as alleged in the first violation
listed in the petition for revocation. Even if there was insufficient evidence to
support the finding that Souza stole the purse as alleged, there was sufficient
evidence to support the finding that Souza stole the alleged drug money. See
United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (applying the
preponderance of evidence standard).
2
Souza’s sentence is substantively reasonable because “the record as a whole
reflects rational and meaningful consideration of the factors . . .” United States v.
Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012), as amended (en banc) (citation
omitted).
Souza concedes that this court has previously rejected his argument that the
district court erred in sentencing Souza to consecutive terms of imprisonment for
violating concurrent terms of supervised release. See United States v.
Heurta-Pimental, 445 F.3d 1220, 1221 (9th Cir. 2006) (holding that Ҥ 3583
supervised release is constitutional under Apprendi,1 Blakely,2 and Booker3” and
that a “a district court’s decision to revoke supervised release and impose
associated penalties is also constitutional”); see also United States v. Xinidakis,
598 F.3d 1213, 1214 (9th Cir.), cert. denied, 131 S. Ct. 495 (2010) (“Multiple
revocations of concurrent terms of supervised release may result in consecutive
time; there is no legal requirement that they must result in concurrent time.”) .
AFFIRMED.
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
2
Blakely v. Washington, 542 U.S. 296 (2004).
3
United States v. Booker, 543 U.S. 220 (2005).
3