United States of America v. David Damante

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID DAMANTE,
Defendant-Appellant.
No. 18-10321
D.C. No. 2:11-cr-00064-APG
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
David Damante appeals from the district court’s judgment and challenges
the 14-month sentence of imprisonment and 12-month term of supervised release
imposed upon revocation of supervised release. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
* 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).
FILED
FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-10321
Damante contends that his sentence is substantively unreasonable. He
argues that the district court acted unreasonably in imposing an above-Guidelines
custodial sentence after crediting his evidence concerning the threats against him,
and in imposing a 12-month term of supervised release for “technical” violations.
The district court did not abuse its discretion. See Gall v. United States, 552 U.S.
38, 51 (2007). The record shows that the district court was only partially
persuaded by Damante’s mitigating evidence and believed that an above-
Guidelines sentence was warranted to promote deterrence and to protect the public.
The 14-month sentence is substantively reasonable in light of the 18 U.S.C.
§ 3583(e) sentencing factors and the totality of the circumstances, including the
length of Damante’s prior revocation sentence and his continued poor performance
on supervision. See Gall, 552 U.S. at 51. Moreover, the 12-month term of
supervised release is substantively reasonable because the nature and number of
Damante’s violations showed that a substantial period of continued supervision is
warranted. See United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007)
(need to deter may be greater where the conduct underlying the revocation is
similar to the conduct underlying the original offense).
AFFIRMED.

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