United States v. Michael Milay

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10128
Plaintiff-Appellee, D.C. No. 2:16-cr-00120-JAM
v.
MEMORANDUM*
MICHAEL MILAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Michael Milay appeals the 12-month-and-one-day sentence, and a condition
of supervised release, imposed following his guilty-plea conviction for failure to
register as a sex offender, in violation of 18 U.S.C. § 2250(a). 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).
For the first time on appeal, Milay contends that the district court
procedurally erred by failing to consider his non-frivolous sentencing arguments,
and adequately explain the sentence. 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. The record reflects that the court considered and responded to
Milay’s arguments, and sufficiently explained the below-Guidelines sentence. See
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover,
notwithstanding the court’s misstatement regarding the length of the aggregate
term, the record is clear that the court intended to impose a sentence of twelve
months and one day for the instant offense and run it consecutively to the seven-
month sentence for Milay’s violation of supervised release.
Milay also challenges a condition of his supervised release that prohibits him
from communicating or interacting with known convicted felons, absent
permission from his probation officer. He contends that the condition is not
reasonably related to his rehabilitation because some of his family members are
felons and it is beneficial to him to have relationships with those family members.
The district court did not abuse its discretion in imposing this standard condition.
See U.S.S.G. § 5D1.3(c)(8) (2016); United States v. Daniels, 541 F.3d 915, 924
(9th Cir. 2008). The court exempted Milay’s father, the only family member
Milay identified as affected by the condition, and the condition is reasonably
2 17-10128
related to the relevant sentencing factors, and involves no greater deprivation of
liberty than is reasonably necessary to achieve the purposes of supervised release.
See 18 U.S.C. § 3583(d); Daniels, 541 F.3d at 924. Contrary to Milay’s argument,
the court was not required to explain further its reasons for imposing the condition.
See Daniels, 541 F.3d at 924.
AFFIRMED.
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