Opinion
No. 10-10048.
The panel unanimously concludes this case is suitable for decision without oral argument.
Filed January 24, 2011.
Michael D. Anderson, Assistant U.S., Office of the U.S. Attorney, Sacramento, CA, for Plaintiff-Appellee.
Douglas J. Beevers, Assistant Federal Public Defender, Federal Public Defender's Office, Fresno, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding. D.C. No. 2:04-cr-00215-MCE.
Before: BEEZEK, TALLMAN, and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Javier Mancilla-Calderon appeals from the revocation of his supervised release and the 24-month sentence imposed following revocation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Mancilla-Calderon contends that the district court violated his due process rights by basing its sentence on charged but unconvicted state law offenses — which had been dismissed as bases for revocation-without providing Mancilla-Calderon an opportunity to rebut the allegations. However, given the district court's statement, upon objection from defense counsel, that the references to state law offenses had not affected its choice of sentence, any error was harmless. See United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (describing standard).
Mancilla-Calderon further contends that the court erred by failing adequately to explain the sentence. Striking the references to the state law conduct, the court's explanation for the sentence it imposed was adequate. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Finally, we cannot say that the district court abused its discretion in imposing the 24-month sentence. See id. at 993; see also United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007) (where defendant violates supervised release by committing same offense for which he was placed on supervised release, "greater sanctions may be required to deter future criminal activity").
AFFIRMED.