                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 17-30088

                Plaintiff-Appellee,             D.C. No. 2:06-cr-00212-JLR

 v.
                                                MEMORANDUM*
PAWEL SEBASTIAN SZKUTNIK,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                          Submitted February 13, 2018**

Before:      LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

      Pawel Sebastian Szkutnik appeals from the district court’s judgment and

challenges the 16-month sentence imposed upon revocation of supervised release.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Szkutnik contends that the district court procedurally erred by failing to use



      *
             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).
the Guidelines range as the starting point at sentencing, instead sentencing him

based on a determination made at a previous hearing. Szkutnik also argues that the

court failed to explain the sentence 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 court considered the

uncontested Guidelines range, but concluded that an above-Guidelines sentence

was warranted in light of Szkutnik’s poor performance on supervised release. The

court’s explanation was sufficient. See United States v. Carty, 520 F.3d 984, 992

(9th Cir. 2008) (en banc). Moreover, the court’s imposition of a 16-month

sentence belies Szkutnik’s argument that the court placed undue reliance on its

remark at a prior revocation hearing that any future violations would result in an

18-month sentence.

      Szkutnik also contends that the sentence is substantively unreasonable. The

district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,

51 (2007). The 16-month sentence is substantively reasonable in light of the 18

U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including

Szkutnik’s history on supervised release and failure to be deterred by prior prison

terms. See Gall, 552 U.S. at 51.

      AFFIRMED.




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