United States of America v. Jose Luis Montano-Rivas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS MONTANO-RIVAS,
Defendant - Appellant.
No. 13-50076
D.C. No. 3:10-cr-04836-GT
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Jose Luis Montano-Rivas appeals from the district court’s judgment and
challenges the 24-month sentence imposed upon revocation of supervised release.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
NOV 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Montano-Rivas contends that the district court violated Federal Rule of
Criminal Procedure 32(i)(4)(A)(iii) by failing to provide an opportunity for the
government to present its sentencing recommendation. We review for plain error,
see United States v. Waknine, 543 F.3d 546, 552-53 (9th Cir. 2008), and find none.
As the parties’ briefs reflect, the law is unclear with respect to whether Rule
32(i)(4)(A)(iii) applies to supervised release revocation proceedings. Thus, any
error by the district court in failing to provide the government an opportunity to
speak before imposing sentence was not “plain.” See United States v. Olano. 507
U.S. 725, 734 (1993).
Montano-Rivas also contends that the district court procedurally erred by
failing to address his mitigation arguments. The record shows the district court
heard Montano-Rivas’s mitigation arguments and sufficiently explained the
sentence. See Rita v. United States, 551 U.S. 338, 358-59 (2007).
Montano-Rivas finally contends that the 24-month sentence is substantively
unreasonable. The district court did not abuse its discretion in imposing Montano-
Rivas’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The
within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.
§ 3583(e) sentencing factors and the totality of the circumstances, including
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Montano-Rivas’s criminal history and breach of the court’s trust. See id.; United
States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007).
AFFIRMED.
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