UNITED STATES of America, Plaintiff-Appellee, v. Derrick VINCENT, Defendant-Appellant.
Decided: December 10, 2020
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Richard Anthony Lopez, Assistant U.S. Attorney, USLV - Office of the U.S. Attorney, Las Vegas, NV, Phillip Nelson Smith, Jr., Attorney, Weinberg, Wheeler, Hudgins, Gunn & Dial, Las Vegas, NV, Elizabeth Olson White, Esquire, Assistant U.S. Attorney, USRE - Office of the US Attorney-Reno, Reno, NV, for Plaintiff-Appellee Aarin Kevorkian, Assistant Federal Public Defender, Federal Public Defender's Office Las Vegas, Las Vegas, NV, for Defendant-Appellant
Derrick Vincent appeals from the district court's judgment and challenges the 24-month sentence imposed upon his third revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Vincent contends the district court procedurally erred by failing to calculate the Guidelines range prior to imposing the sentence and by inadequately explaining the upward variance from the Guidelines range. 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. Despite the district court's failure to state the Guidelines range at the outset of sentencing, the record reflects that the court was aware of the correct, undisputed Guidelines range. The district court also sufficiently explained its reasons for the upward variance, including Vincent's repeated violations of the terms of his supervised release and the need to protect the public. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). On this record, Vincent has not shown a reasonable probability that he would have received a different sentence absent the alleged errors. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
Vincent also contends that his sentence is substantively unreasonable. 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 above-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) factors and the totality of the circumstances. See Gall, 552 U.S. at 51, 128 S.Ct. 586.
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