United States of America v. Jose Javier Mancilla- Calderon

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE JAVIER MANCILLA-
CALDERON,
Defendant - Appellant.
No. 10-10048
D.C. No. 2:04-cr-00215-MCE
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
January 10, 2011**
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Jose Javier Mancilla-Calderon appeals from the revocation of his supervised
release and the 24-month sentence imposed following revocation. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
JAN 24 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

10-10048 2
Mancilla-Calderon contends that the district court violated his due process
rights by basing its sentence on charged but unconvicted state law offenses—which
had been dismissed as bases for revocation—without providing Mancilla-Calderon
an opportunity to rebut the allegations. However, given the district court’s
statement, upon objection from defense counsel, that the references to state law
offenses had not affected its choice of sentence, any error was harmless. See
United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (describing standard).
Mancilla-Calderon further contends that the court erred by failing adequately
to explain the sentence. Striking the references to the state law conduct, the court’s
explanation for the sentence it imposed was adequate. See United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc). Finally, we cannot say that the
district court abused its discretion in imposing the 24-month sentence. See id. at
993; see also United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007) (where
defendant violates supervised release by committing same offense for which he
was placed on supervised release, “greater sanctions may be required to deter
future criminal activity”).
AFFIRMED.

-- 2 of 2 --