United States of America v. James Nicolas Avila

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES NICOLAS AVILA,
Defendant-Appellant.
No. 23-50040
D.C. No. 2:04-cr-01677-JFW-3
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted December 12, 2023**
Before: WALLACE, LEE, and BUMATAY, Circuit Judges.
James Nicolas Avila appeals from the district court’s judgment and
challenges the 30-month sentence imposed upon the revocation of his supervised
release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Avila contends that his sentence is substantively unreasonable because it
* 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
DEC 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 23-50040
does not account for his post-violation rehabilitation during his state incarceration
and because the district court may have improperly punished him for the criminal
conduct underlying his violation. The district court did not abuse its discretion.
See Gall v. United States, 552 U.S. 38, 51 (2007). Contrary to Avila’s suggestion,
the district court properly considered the seriousness of his violation conduct as a
factor “contributing to the severity of [Avila’s] breach of trust.” United States v.
Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007). Moreover, the district court took
Avila’s rehabilitative efforts into account and, although it found these efforts to be
“remarkable,” acted within its broad discretion in concluding that a 30-month
sentence was warranted. See United States v. Gutierrez-Sanchez, 587 F.3d 904,
908 (9th Cir. 2009) (“The weight to be given the various factors in a particular case
is for the discretion of the district court.”). The high-end 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.
AFFIRMED.

-- 2 of 2 --