UNITED STATES v. VAN WINKLE (2019)

MEMORANDUM **

Leslie Charlie Van Winkle appeals from the district court’s judgment and challenges the 30-month sentence imposed upon his third revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Van Winkle first argues that the district court procedurally erred by failing to address his arguments regarding his brain damage and to explain the above-Guidelines sentence. The district court did not plainly err. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The court considered Van Winkle’s arguments and sufficiently explained that the upward variance was warranted in light of Van Winkle’s repeated breaches of the court’s trust, the need to protect the public, and Van Winkle’s unsuitability for supervision. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

Van Winkle also contends that the sentence is substantively unreasonable in light of his brain damage and resulting cognitive deficiencies. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances. See Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007).

We decline to consider issues not specifically raised in Van Winkle’s opening brief. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).

Van Winkle’s unopposed motion for judicial notice is granted.

AFFIRMED.