United States of America v. Thomas Dwain Andy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS DWAIN ANDY,
Defendant-Appellant.
No. 19-30026
D.C. No. 2:07-cr-02039-SAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Thomas Dwain Andy appeals from the district court’s judgment and
challenges the 24-month custodial sentence and 8-month term of supervised
release imposed upon his second 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
NOV 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 19-30026
Andy contends that the statutory maximum custodial sentence is
substantively unreasonable. The district court did not abuse its discretion in light
of the 18 U.S.C. § 3583(e) sentencing factors and totality of the circumstances,
including the nature and circumstances of the violations. See Gall v. United States,
552 U.S. 38, 51 (2007); see also United States v. Gutierrez-Sanchez, 587 F.3d 904,
908 (9th Cir. 2009) (“The weight to be given the various factors in a particular case
is for the discretion of the district court.”). Moreover, contrary to Andy’s
contention, the record reflects that the district court relied on only proper
sentencing factors. See United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.
2007).
Andy also contends that the district court procedurally erred by failing to
explain the term of supervised release adequately. 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. The record reflects that the district court sufficiently
explained its reasons for imposing the term of supervised release by adopting the
government’s argument that the term was necessary to afford adequate deterrence
and to protect the public. See United States v. Carty, 520 F.3d 984, 992 (9th Cir.
2008) (en banc). Moreover, contrary to Andy’s contention, the term of supervised
release is substantively reasonable. See Gall, 552 U.S. at 51.
AFFIRMED.

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