                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50077

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00307-BEN-1
 v.

MARK ACHIN,                                     MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted January 11, 2019
                               Pasadena, California

Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District
Judge.

      Mark Achin appeals the revocation of his supervised release and imposition

of additional custody with subsequent supervision. We have jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We strike Standard Condition 4 from

the judgment but otherwise affirm the district court’s sentence.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
      Because Achin failed to raise his arguments before the district court, plain

error review applies. United States v. Valencia-Barragan, 608 F.3d 1103, 1108

(9th Cir. 2010).

      First, Achin contends that the district court violated his due process rights by

failing to provide him with a specific opportunity to be heard on whether

modification or extension (rather than revocation) of supervised release was

warranted and by failing to consider independently all three options.

      The record indicates that after announcing its tentative sentence, the district

court gave Achin and his counsel the opportunity to challenge the sentence, present

mitigating evidence, and persuade the court to impose a different sentence. Both

Achin and his counsel took this opportunity and argued for modification of

supervised release rather than revocation. Moreover, given that (1) the revocation

petition provided that the district court could modify, extend, or revoke supervised

release, and (2) Achin and his counsel both argued for modification, it is clear that

the court understood that it could continue Achin on supervision, but instead

elected to revoke supervised release. As a result, we conclude that the district court

did not plainly err and, instead, provided Achin with all of the due process required

by Morrissey v. Brewer, 408 U.S. 471 (1972).

      Second, Achin contends that, in setting his custodial sentence, the district

court plainly erred by impermissibly considering: (1) rehabilitation as a basis for


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elevating the custodial sentence;1 and (2) the need to punish the underlying offense

or to promote respect for the law.2 Additionally, Achin asserts that the district court

erred in failing to explain the increase to an eighteen-month custodial sentence

from the Guidelines recommendation of four to ten months. See United States v.

Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

      The record shows that the district court sentenced Achin to eighteen months

of incarceration based on its legitimate desire to deter repeat violations of

supervised release and to punish the current violations. Although the district court

announced the prison sentence immediately after discussing Achin’s drug abuse, it

is apparent from the hearing transcript that the court’s concerns regarding

substance abuse treatment were targeted at the term of supervised release rather

than the term of incarceration. There is no suggestion in the record that the district

court extended Achin’s custodial sentence to accommodate rehabilitation.

Similarly, the record does not suggest that the district court was attempting to

punish Achin for any underlying violations of the law rather than for his immediate

and flagrant violations of the terms of his supervised release.

      Contrary to Achin’s argument, the district court provided reasons for varying

upwards from the custodial sentence recommended by the Guidelines, including


1
      See Tapia v. United States, 564 U.S. 319, 332 (2011).
2
      See United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006).

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that: (1) the prior identical term did not deter Achin; (2) Achin repeatedly flouted

the court’s rules and breached its trust; and (3) Achin was cavalier to the

obligations the court imposed to address substance abuse. An adequate explanation

for a sentence “may also be inferred from the PSR or the record as a whole.” Id.

Here, the revocation petition contains an additional reason for the upward variance:

quoting Sentencing Guideline § 7Bl.4, Application Note 4, the revocation petition

provides that because “the original sentence was the result of a downward

departure . . . an upward departure may be warranted.” These reasons are sufficient

to permit judicial review. Id.; see also 18 U.S.C. § 3553(c). Because the district

court provided adequate explanation for Achin’s custodial sentence, we conclude

that it did not commit plain error.

      Third, Achin argues that in setting his period of supervised release, the

district court plainly erred by varying upwards to five years from the Guidelines

recommendation of three years without calculating or stating the Guidelines

recommendation on the record or explaining the need for the increase. We

acknowledge that the district court did not mention what Achin contends is the

Guidelines recommendation for the length of supervision,3 nor did it explicitly

explain why five years, rather than three, was appropriate. Ideally, the district court

3
      At the sentencing hearing, the district court stated only that the maximum
term of supervised release was life. The original pre-sentence investigation report
appears to be the only relevant document providing that the Guidelines
recommendation is three years.

                                          4
should have clearly documented its reasons for the variance on the record. United

States v. Hammons, 558 F.3d 1100, 1104 (9th Cir. 2009). However, unlike in

Hammons, a reading of the sentencing hearing transcript, and the record as a

whole, provides sufficient explanation for the court’s decision to increase the term

of supervised release such that the decision is reviewable. Carty, 520 F.3d at 992.

The record indicates that the district court considered, for example: (1) Achin’s

history of recidivism; (2) his inability to control his substance abuse; (3) his

exceptionally poor adjustment to supervision (including immediately violating the

terms upon release); and (4) the fact that the previous sentence imposed (which

included three years of supervised release) was ineffective. The record also

indicates that the district court considered but rejected a three-year term of

supervised release as that was the recommendation espoused by the probation

officer. Lastly, the district court explained that it would consider reducing the term

of supervised release if Achin performed well, providing Achin with an incentive

for compliance. This statement illuminates an additional reason why the court

concluded that the increased supervision period was warranted. Given the

sufficiency of reasons supporting the district court’s imposition of five years of

supervised release, we conclude that the district court did not commit plain error.

      Finally, both parties agree that Standard Condition 4 in the judgment, that

Achin support his dependents and meet other family responsibilities, should be


                                           5
stricken. We agree. Achin has no dependents, and the phrase “other family

responsibilities” has been found to be unconstitutionally vague and was

subsequently removed from the Sentencing Guidelines. United States v. Evans, 883

F.3d 1154, 1162-63 (9th Cir. 2018). Therefore, we strike Standard Condition 4

from the judgment.

      Standard Condition 4 is STRICKEN from the judgment, and as

modified, the judgment is AFFIRMED.




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