United States of America v. Delvon Lewis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DELVON LEWIS,
Defendant-Appellant.
No. 18-10314
D.C. No. 3:10-cr-00784-CRB-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Delvon Lewis appeals from the district court’s judgment and challenges the
24-month sentence and one condition 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
APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Lewis first argues that the district court procedurally erred by failing to
calculate the Guidelines range. He did not raise this objection below, so we review
for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th
Cir. 2010), and conclude that there is none. It is apparent from the record that the
district court was aware of the applicable range, and Lewis has not shown a
reasonable probability that he would have received a different sentence but for the
error. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
Lewis also argues that the district court erred by failing to consider, or
explain adequately its rejection of, his argument that he was entitled to a
downward variance because of the government’s delay in bringing revocation
proceedings. The court did not err because the record as whole indicates that the
court considered Lewis’s argument, but believed that a within-Guidelines sentence
was warranted in light of Lewis’s breach of the court’s trust and the need to protect
the public. See Rita v. United States, 551 U.S. 338, 358-59 (2007).
Likewise, contrary to Lewis’s argument, the district court’s reasons for
imposing a condition of supervised release requiring him to reside, at his probation
officer’s discretion, for six months in a residential reentry center (“RRC”) are
apparent from the record as a whole. See United States v. Daniels, 541 F.3d 915,
924 (9th Cir. 2008). Lewis provides no authority for his argument that an RRC
condition is the kind of condition that requires a more detailed explanation. See id.

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(condition involving a “significant liberty interest” requires heightened
explanation).
Finally, Lewis contends that the sentence and RRC supervised release
condition are substantively unreasonable. The district court did not abuse its
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The RRC condition
is reasonably related to Lewis’s rehabilitation and involves no greater deprivation
of liberty than is reasonably necessary to achieve the purposes of supervised
release. See 18 U.S.C. § 3583(d); Daniels, 541 F.3d at 924. The statutory
maximum sentence is also substantively reasonable in light of the sentencing
factors under 18 U.S.C. § 3583(e) and the totality of the circumstances. See Gall,
552 U.S. at 51.
AFFIRMED.

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