United States v. Gus Oldbear, III

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30156

Plaintiff-Appellee, D.C. No. 1:19-cr-00034-SPW-1 v. GUS OLDBEAR, III, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted June 21, 2021** Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.

Gus Oldbear, III, appeals from the district court’s judgment and challenges the 41-month sentence imposed following revocation of his probation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Oldbear argues the district court imposed an unreasonable sentence because

* 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).

it based the sentence on the seriousness of his offense conduct, contrary to our decision in United States v. Miqbel, 444 F.3d 1173, 1181-83 (9th Cir. 2006). That argument is unavailing because the statute governing probation revocations, unlike the statute governing revocation of supervised release, permits the district court to consider any applicable 18 U.S.C. § 3553(a) factor, see 18 U.S.C. § 3565(a), and “give[s] the trial court discretion to sentence a probation violator to the range of sentences available at the time of the original sentencing,” United States v. Plunkett, 94 F.3d 517, 519 (9th Cir. 1996). In light of the § 3553(a) factors and the totality of the circumstances, the sentence, which is at the bottom of the Guidelines range applicable at the original sentencing, is reasonable. See United States v. Peters, 470 F.3d 907, 909 (9th Cir. 2006).

AFFIRMED.

Footnotes

[2] 20-30156