United States of America v. Miguel Ortega-Rodriguez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL ORTEGA-RODRIGUEZ,
Defendant-Appellant.
No. 21-50156
D.C. No. 3:20-cr-10140-BAS-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted July 12, 2022**
Before: SCHROEDER, R. NELSON, and VANDYKE, Circuit Judges.
Miguel Ortega-Rodriguez appeals from the district court’s judgment and
challenges the 12-month consecutive sentence imposed upon revocation of his
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Ortega-Rodriguez contends that the district court procedurally erred and
* 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
JUL 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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violated due process by failing to afford him the opportunity to be heard as to
whether his admitted violation warranted revocation. 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. In light of the court’s statements at sentencing, at
which it permitted Ortega-Rodriguez to allocute and rejected his request for a fully
concurrent revocation sentence, Ortega-Rodriguez has not shown a reasonable
probability that, absent the alleged error, the district court would have elected not
to revoke supervised release. See United States v. Dallman, 533 F.3d 755, 762 (9th
Cir. 2008).
Ortega-Rodriguez next argues that the district court erred by failing to
explain its reasons for the revocation sentence and to respond to his mitigating
arguments. However, the court acknowledged Ortega-Rodriguez’s family-related
mitigating arguments and explained that Ortega-Rodriguez’s criminal history, and
the failure of his prior sentences to deter him, justified an aggregate sentence of 36
months. The court did not plainly err in failing to say more. See Valencia-
Barragan, 608 F.3d at 1108; United States v. Perez-Perez, 512 F.3d 514, 516-17
(9th Cir. 2008).
AFFIRMED.

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