Opinion
22-10028
10-19-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ADAM RAY YBARRA, Defendant-Appellant.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court No. 2:16-cr-00239-JCM-NJK-1 for the District of Nevada James C. Mahan, District Judge, Presiding
Before: SILVERMAN, GRABER, and BENNETT, Circuit Judges.
MEMORANDUM
Adam Ray Ybarra appeals from the district court's judgment and challenges the 24-month sentence imposed upon his second revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Ybarra contends that the district court violated his right to due process and Federal Rule of Criminal Procedure 32.1 by announcing the sentence before permitting him to allocute. We disagree. Although the court initially pronounced the sentence without inviting Ybarra to allocute, it subsequently provided Ybarra an opportunity to make a statement and then explained why it was not persuaded to impose a shorter sentence. On this record, the district court did not violate Ybarra's rights. See United States v. Laverne, 963 F.2d 235, 237 (9th Cir. 1992) (holding that the district court did not violate the defendant's right to allocute because it allowed the defendant to make a statement after the preliminary sentence was announced and it was "able to consider the defendant's statement and was free to alter its view of the sentence if the defendant offered a sufficient reason for changing its view").
Ybarra next contends that the district court failed to consider his arguments or 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 district court considered Ybarra's arguments for a lower sentence, understood its discretion to vary below the Guidelines range, and adequately explained its determination that a within-Guidelines sentence was appropriate in light of Ybarra's poor performance on supervision. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
Finally, Ybarra argues that the 24-month sentence is substantively unreasonable. The district court did not abuse its discretion in imposing the sentence, which is substantively reasonable in light of the 18 U.S.C. § 3583(e) factors and the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).