                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 12 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10084

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-00017-LRH-WGC-1
 v.

CHRISTOPHER ARMELLIO BARLESE,                    MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                    Argued and Submitted November 17, 2016
                            San Francisco, California

Before: SCHROEDER, WARDLAW, and OWENS, Circuit Judges.

      Christopher Armellio Barlese appeals his sentence after pleading guilty to

assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3), 1151 and

1153. Apparently under the influence of mind-altering drugs, he assaulted an

elderly man in his home, and stabbed him twenty-nine times.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.     Barlese’s principal argument on appeal is that the district court

improperly considered his rehabilitation needs in imposing the sentence, in

violation of Tapia v. United States, 564 U.S. 319 (2011), and United States v.

Tapia, 665 F.3d 1059 (9th Cir. 2011). We review for plain error.

      The Supreme Court in Tapia recognized that a court is prohibited from

“imposing or lengthening a prison term to promote an offender’s rehabilitation.”

564 U.S. at 332; see also 18 U.S.C. § 3582(a) (providing that imprisonment is “not

an appropriate means of promoting correction and rehabilitation”). There was no

plain error in this case. In sentencing above the Guidelines range, the district court

expressly took into account the appropriate factors under § 3553(a)(2). Although it

recognized that the defendant has serious mental health issues, the court did not

suggest that the sentence itself was imposed out of concern for rehabilitation needs.

      2.     The district court did not abuse its discretion by imposing a

substantively unreasonable sentence. See United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008). The district court expressly noted that it “started at the

[G]uidelines” in calculating Barlese’s sentence and gave “great deference” to the

parties’ sentencing recommendation, but that the circumstances of the offense and

Barlese’s criminal history warranted its rejection of the plea agreement and upward

departure from the Guidelines range. Similarly, the district court explained that it


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was “fully aware of the defendant’s mental health issues, his drug history, his

family history” and incorporated into its analysis the likelihood that those factors

contributed to Barlese’s criminal record. Finally, the record does not indicate that

the district court was influenced in its sentencing determination by the

government’s victim impact evidence, because all such evidence was available

elsewhere in the record.

      AFFIRMED.




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