United States v. Ruben Sanavia-Arellano

FILED
NOT FOR PUBLICATION JUL 15 2010
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. 09-50392
Plaintiff - Appellee, D.C. No. 3:07-cr-01578-LAB-1
v.
MEMORANDUM *
RUBEN SANAVIA-ARELLANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
UNITED STATES OF AMERICA, No. 09-50425
Plaintiff - Appellee, D.C. No. 3:08-cr-02572-W-1
v.
RUBEN SANAVIA-ARRELLANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted June 9, 2010
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and MARBLEY, District
Judge.**
1. Judge Burns committed no procedural error when sentencing Ruben
Sanavia-Arellano (Sanavia-Arellano). Judge Burns properly considered the §
3553(a) factors. See United States v. Dewey, 599 F.3d 1010, 1016 (9th Cir. 2010)
(defining procedural error as “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence . . .”) (citation omitted).
2. Judge Burns did not primarily rely on Sanavia-Arellano’s most recent
illegal reentry to impose sentence. Rather, Judge Burns focused on Sanavia-
Arellano’s failure to keep his promises, i.e., his breach of trust. See United States
v. Hammons, 558 F.3d 1100, 1104 (9th Cir. 2009) (stating that at a revocation
**
The Honorable Algenon L. Marbley, District Judge for the Southern
District of Ohio, sitting by designation.
Page 2 of 3
hearing, the sentencing court may impose a sentence for “breach of trust”)
(citations omitted).
3. Judge Whelan’s oral pronouncement at the revocation hearing was not
clear and unambiguous. Therefore, the written judgment controls. See Fenner v.
United States Parole Comm’n, 251 F.3d 782, 787 (9th Cir. 2001).
4. As clarified in United States v. Xinidakis, 598 F.3d 1213, 1217 (9th
Cir. 2010), a district court judge has discretion to impose a sentence that runs
concurrently or consecutively to a prior undischarged sentence.
AFFIRMED.
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