Opinion
No. 06-30439. D.C. No. CR-98-00121-AAM.
Submitted March 9, 2007 Seattle, Washington.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
March 15, 2007.
Appeal from the United States District Court for the Eastern District of Washington Alan A. McDonald, District Judge, Presiding.
Before: B. FLETCHER, O'SCANNLAIN, and TASHIMA, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
David Vickers appeals the sentence imposed upon revocation of his supervised release, challenging its reasonableness. After he violated several conditions of his supervised release, the district court revoked that supervised release and sentenced him to fourteen months in prison, followed by twenty-two months of supervised release. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3724. We review Vickers's sentence for reasonableness, see United States v. Booker, 543 U.S. 220, 261-62 (2005), and we affirm.
First, Vickers contends that the district court impermissibly considered his failure to provide urine samples, as mandated by a condition of his supervised release, on three dates: October 4, 2005; November 7, 2005; and January 23, 2006. During his sentencing hearing, Vickers argued that he was not legally obligated to comply with this particular condition because it had been imposed in violation of United States v. Stephens, 424 F.3d 876 (9th Cir. 2005). Under Stephens, a district court cannot allow a probation officer to determine the "maximum number of non-treatment drug tests to which [a defendant] would be subjected during the course of his supervised release." Id. at 878. A review of the sentencing hearing transcript makes clear, however, that the district court fully recognized Vickers's proffered reason for failing to provide urine samples on those three dates and that the district court sentenced him based only on the "balance" of his admitted violations. Vickers's first argument, therefore, fails.
Vickers's supervised release conditions were modified on March 6, 2006 to comply with Stephens. Vickers does not dispute that he was thereafter legally obligated to provide urine samples.
Vickers next argues that the district court impermissibly considered 18 U.S.C. § 3553(a)(2), contrary to what is authorized by 18 U.S.C. § 3583(c). See United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (explaining that because "Congress deliberately omitted [§ 3553(a)(2)(A)] from the list applicable to revocation sentencing, relying on that factor when imposing a revocation would be improper"). Under § 3553(a)(2), a sentencing judge may consider "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2). According to Vickers, the district court accounted for this proscribed factor when he referenced the "serious" nature of his offense during his sentencing hearing.
The sentencing hearing transcript makes clear that the district court only referenced the seriousness of Vickers's original offense, not the seriousness of his more recent crimes. Such reference is entirely permissible under § 3583(c), which specifically authorizes a district court to consider 18 U.S.C. § 3553(a)(1) — "the nature and circumstances of the offense and the history of the defendant." See U.S. SENTENCING GUIDELINES MANUAL, ch. 7, pt. A, introductory cmt. (2006) (explaining that the district court can "tak[e] into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator"); see also Miqbel, 444 F.3d at 1182 (explaining that "at a revocation sentencing, a court may appropriately sanction a violator for [the] `breach of trust'" inherent in a violation of supervised release, although it "may not punish him for the criminal conduct underlying the revocation"). The district court, therefore, did not exceed its statutory authority when sentencing Vickers and instead imposed a reasonable sentence.
AFFIRMED.