United States of America v. Ernest Joseph Bisson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERNEST JOSEPH BISSON,
Defendant-Appellant.
No. 15-30274
D.C. No. 6:95-cr-60087-MC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted August 16, 2016**
Before: O’SCANNLAIN, LEAVY, and CLIFTON, Circuit Judges.
Ernest Joseph Bisson appeals from the district court’s judgment and
challenges the 12-month consecutive sentence imposed upon revocation of
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
AUG 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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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Bisson contends that the district court should not have imposed any prison
time for his supervised release violation because he served 189 months for his
underlying conviction, 69 months more than the 120 month statutory maximum
that he contends would apply under Johnson v. United States, 135 S. Ct. 2551
(2015). Even assuming that Bisson is correct that he served too much time for his
underlying conviction, his claim fails. It is undisputed that Bisson was on
supervised release when he committed the violation. The record shows that the
district court took into account Bisson’s Johnson argument and imposed a below-
Guidelines sentence. The court’s failure to impose an even lower sentence was not
an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The
sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) factors and
the totality of circumstances, including Bisson’s poor performance on supervision.
See Gall, 552 U.S. at 51; United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.
2007).
AFFIRMED.
15-30274 2

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