United States v. 2010-05-19 | 09-50155 | USA V. FRANCISCO KELLY-PALMER | nonprecedential | memorandum…

* Daniel M. Friedman, United States Circuit Judge for the Federal
Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50155
Plaintiff - Appellee, D.C. No. 3:04-CR-00253-H-1
v.
ORDER AMENDING
FRANCISCO KELLY-PALMER,
Defendant - Appellant.
Before: FRIEDMAN, * D.W. NELSON, and REINHARDT, Circuit Judges.
The memorandum disposition filed on April 29, 2010, is amended as
follows:
After the first sentence of the paragraph numbered “2" on page 4, delete the
next two sentences beginning with “Although those prior violations” and ending
with “setting his sentence.” In place of the deleted sentences, insert the following
two sentences:
FILED
MAY 19 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
2. 18 U.S.C. § 3553(a)(2)(B) requires the sentencing
court to consider a sentence that “afford[s] adequate deterrence
to criminal conduct,” and the district court properly concluded
that the imposition of a period of supervised release had
repeatedly failed to deter Kelly-Palmer from further criminal
conduct involving illegal reentry, in violation of supervised
release. Kelly-Palmer’s previous supervised release violations
were therefore pertinent in setting his sentence.
The next sentence beginning “In view of” should be a separate paragraph.
The amended part 2 now reads as follows:
2. The district court properly relied upon Kelly-Palmer’s
previous violations of supervised release in determining the
sentence. 18 U.S.C. § 3553(a)(2)(B) requires the sentencing
court to consider a sentence that “afford[s] adequate deterrence
to criminal conduct,” and the district court properly concluded
that the imposition of a period of supervised release had
repeatedly failed to deter Kelly-Palmer from further criminal
conduct involving illegal reentry, in violation of supervised

-- 2 of 3 --

3
release. Kelly-Palmer’s previous supervised release violations
were therefore pertinent in setting his sentence.
In view of those facts and the Sentencing Guidelines direction
that “imprisonment imposed upon the revocation of . . . supervised
release shall . . . be served consecutively to any sentence of
imprisonment that the defendant is serving,” U.S.S.G. § 7B1.3(f), the
consecutive sentence was reasonable.
The petition for rehearing and petition for rehearing en banc are
still pending. No further petitions shall be entertained.

-- 3 of 3 --