United States v. Lawrence Sikutwa

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30140
Plaintiff-Appellee, D.C. No. 4:12-cr-00056-BLW
v.
MEMORANDUM*
LAWRENCE SIKUTWA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Lawrence Sikutwa appeals from the district court’s judgment and challenges
the revocation of supervised release following a contested evidentiary hearing. We
have jurisdiction under 28 U.S.C. § 1291. Reviewing for abuse of discretion, see
United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003), 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).
Sikutwa contends that the government failed to prove by a preponderance of
the evidence that his violation was willful and, therefore, the district court erred by
revoking his supervised release. Contrary to Sikutwa’s contention, Bearden v.
Georgia, 461 U.S. 660 (1983), did not require the district court to find that
Sikutwa’s violation was willful. In that case, the Court addressed the
circumstances under which the trial court may imprison a defendant for failure to
pay. See id. at 672 (court may not impose sentence of imprisonment for failure to
pay unless failure was willful or, in the case of bona fide efforts to pay, where the
court determines that alternatives to imprisonment are insufficient). Bearden is
inapposite here because the district court did not impose a term of imprisonment; it
instead opted to impose a new supervised release term, with a 60-day period of
home confinement. In any event, the evidence here was sufficient to show
willfulness, notwithstanding the fact that Sikutwa paid more than was required on
some occasions. See United States v. Jeremiah, 493 F.3d 1042, 1045-46 (9th Cir.
2007).
AFFIRMED.
2 17-30140