United States of America v. Froy Serrato-Cesareo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FROY SERRATO-CESAREO,
Defendant - Appellant.
No. 13-50201
D.C. No. 3:07-cr-02703-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 5, 2014**
Pasadena, California
Before: GOULD and N.R. SMITH, Circuit Judges, and ENGLAND, Chief District
Judge.***
FILED
JUN 12 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by designation.

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1. The district court did not plainly err by delaying Froy Serrato-Cesareo’s
revocation sentencing. Federal Rule of Criminal Procedure 32.1 “‘primarily’
governs . . . post-revocation sentencing[s].” United States v. Whitlock, 639 F.3d
935, 940 (9th Cir. 2011). Rule 32.1(b)(2) requires “the court [to] hold the
revocation hearing within a reasonable time.” Here, any violation of Rule 32.1’s
timeliness requirement was not “clear” or “obvious” under current law. See United
States v. Olano, 507 U.S. 725, 734 (1993). Given Whitlock, even if United States
v. Carper, 24 F.3d 1157 (9th Cir. 1994), suggests application of Rule 32,
application of Rule 32.1’s reasonableness standard would not constitute plain error.
2. Any violation of Serrato-Cesareo’s due process right to a prompt hearing
is not “plain,” because it is not “clear” or “obvious” under current law that the
delay was unreasonable. See Olano, 507 U.S. at 734. “[O]ur cases considering
due process claims for revocation proceedings have held that relief is not called for
unless there was both unreasonable delay and prejudice.” United States v.
Santana, 526 F.3d 1257, 1260 (9th Cir. 2008). The delay of two months in this
case is less than the delays at issue in both Santana, 526 F.3d at 1259-61 (121
days), and United States v. Wickham, 618 F.2d 1307, 1310-11 (9th Cir. 1979)
(seven months), where this court found no violations of due process. Furthermore,
this court has never held that delaying a revocation sentencing until after the
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violator has been sentenced on the underlying criminal conduct constitutes an
improper reason for delay or that it makes a delay in sentencing unreasonable.
3. The district court did not abuse its discretion by imposing a sentence that
fell within the Guideline range. The district court’s decision was not substantively
unreasonable, because, in addition to the imposition of punishment for the crime
underlying the revocation, “a court may properly ‘sanction the violator for failing
to abide by the conditions of the court-ordered supervision.’” United States v.
Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (citation omitted).
AFFIRMED.
3

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