UNITED STATES v. OLDBEAR III (2021)

United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Gus OLDBEAR, III, Defendant-Appellant.

No. 20-30156

Decided: June 25, 2021

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges. Lori Anne Harper Suek, Assistant U.S. Attorney, Leif Johnson, Assistant U.S. Attorney, Jeanne R. Torske, Office of the US Attorney, Billings, MT, for Plaintiff-Appellee Joslyn Michelle Hunt, FDMT-Federal Defenders of Montana, Helena, MT, for Defendant-Appellant

MEMORANDUM **

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 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.