Opinion
22-30041
10-20-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JEREMIAH ROBERT WIBERG, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted October 12, 2022
Appeal from the United States District Court for the District of Montana, D.C. No. 1:06-cr-00063-SPW-1 Susan P. Watters, District Judge, Presiding
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM [*]
Jeremiah Robert Wiberg appeals from the district court's judgment revoking supervised release and imposing a 24-month sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Wiberg contends that, because the government did not establish a continuous chain of custody for his seized cell phone, the district court erred by relying on evidence found on the phone. To the extent Wiberg challenges the district court's decision to revoke supervised release, his argument is unavailing because the Federal Rules of Evidence do not apply in supervised release revocation proceedings, see United States v. Walker, 117 F.3d 417, 420-21 (9th Cir. 1997), and the court's decision to revoke was independently supported by Wiberg's admission to several of the alleged violations. Wiberg's argument as to his sentence fares no better because the rules of evidence are similarly inapplicable at sentencing; instead, the district court is "largely unlimited as to the kind of information" it can consider at sentencing as long as the information contains some "minimal indicium of reliability." United States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009) (internal quotation marks omitted). To the extent the court considered the phone-related evidence to determine the sentence, Wiberg has not shown that the evidence was unreliable.
Wiberg also contends that the district court did not explain the above Guidelines sentence adequately. The district court did not plainly err, see United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir. 2006), because the record shows that it considered the 18 U.S.C. § 3583(e) factors and provided a thorough explanation for the sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Finally, contrary to Wiberg's argument, the sentence is substantively reasonable in light of the totality of the circumstances, including Wiberg's numerous breaches of the court's trust and the need to protect the public. See Gall v. United States, 552 U.S. 38, 51 (2007) (stating totality of the circumstances standard); Miqbel, 444 F.3d at 1182 (holding that a revocation sentence may be imposed as a sanction for the defendant's breach of the court's trust).
AFFIRMED.
[*] 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).