United States of America v. Brian Bokkes

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN BOKKES,
Defendant - Appellant.
No. 14-50409
D.C. No. 8:12-cr-00043-CJC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Brian Bokkes appeals from the district court’s judgment and challenges the
24-month sentence imposed upon revocation of supervised release. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
NOV 24 2015
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).

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Bokkes contends that the district court procedurally erred by failing to
consider the Guidelines range and the 18 U.S.C. § 3583(e) sentencing factors,
instead imposing sentence based on the need to punish the conduct underlying the
revocation, a prohibited consideration in a revocation sentencing. He also argues
that the court failed to provide specific reasons for imposing an above-Guidelines
sentence and to address his mitigating argument. We review for plain error. See
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010).
The district court erred when it failed to calculate the Guidelines range. See United
States v. Hammons, 558 F.3d 1100, 1105 (9th Cir. 2009). However, the record
reflects that the district court was aware of the Guidelines range. Furthermore, the
district court considered Bokkes’s mitigating argument and the section 3583(e)
sentencing factors, disavowed any reliance on the need to punish, and adequately
explained the above-Guidelines sentence. See United States v. Carty, 520 F.3d
984, 992-93 (9th Cir. 2008) (en banc). On this record, Bokkes has failed to show a
reasonable probability that he would have received a different sentence absent the
error. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
Bokkes also contends that his sentence is substantively unreasonable. The
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The 24-month sentence, six months above the high end of the
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Guidelines range, is substantively reasonable in light of the section 3583(e)
sentencing factors and the totality of the circumstances. See Gall, 522 U.S. at 51.
AFFIRMED.
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