                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 21 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30100

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00102-RHW

 v.
                                                 MEMORANDUM*
WAYNE D. MCDUFFIE,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                    Robert H. Whaley, District Judge, Presiding

                             Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

      Wayne D. McDuffie appeals the district court’s revocation of supervised

release and the 24-month sentence imposed thereupon. 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 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).
      McDuffie contends that remand is required because the district court failed

to address him personally to obtain a waiver of his right to a contested hearing

under Federal Rule of Criminal Procedure 32.1(b). We disagree. Although it was

defense counsel who informed the district court that McDuffie wished to admit the

violations of supervised release, McDuffie himself signed an acknowledgment of

his Rule 32.1(b) rights prior to the hearing and repeatedly took responsibility for

his violation conduct during his allocution. Thus, the record shows that

McDuffie’s waiver of his right to a contested hearing and admission were

knowing, intelligent, and voluntary. See United States v. Stocks, 104 F.3d 308, 312

(9th Cir. 1997).

      McDuffie also contends that the district court procedurally erred by failing

to calculate the Guidelines range, keep the Guidelines range in mind throughout its

sentencing analysis, respond to his mitigating arguments, and sufficiently explain

the sentence. We review for plain error. See United States v. Valencia-Barragan,

608 F.3d 1103, 1108 (9th Cir. 2010). Although the district court erred when it

failed to calculate the Guidelines range, it sufficiently explained its reasons for

rejecting McDuffie’s mitigating arguments and imposing the within-Guidelines,

statutory-maximum sentence. See United States v. Carty, 520 F.3d 984, 991-93

(9th Cir. 2008) (en banc). In light of the court’s explanation, we conclude that


                                           2                                     15-30100
McDuffie has failed to show a reasonable probability that he would have received

a different sentence if the court had calculated the Guidelines range on the record.

See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).

      AFFIRMED.




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