                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                        FILED
                               FOR THE NINTH CIRCUIT                             SEP 10 2014

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

    UNITED STATES OF AMERICA,                     No. 14-50008

                 Plaintiff - Appellee,            D. C. No. 3:12-cr-07084-BEN-1

     v.                                           MEMORANDUM*

    ENOCH ALJOURN. MONTAQUE,

                 Defendant - Appellant.


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

                        Argued and Submitted August 27, 2014
                                 Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and RAKOFF,
Senior District Judge.**

          Defendant-Appellant Enoch A. Montaque appeals from the District Court’s

judgment revoking his supervised release and imposing a five-month, below-


*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
guidelines sentence of imprisonment, thirty-one month sentence of supervised

release, and additional conditions requiring that Montaque undergo an anger

management program and a mental health treatment program.

      Montaque argues principally that the Court committed procedural error and

violated his First Amendment rights by imposing an additional unwritten

“constructive condition” of supervised release during sentencing, stating “I’ll make

a note in my file, you ever do that again [swear at a probation officer], I get a

violation petition, I’ll send you away for 24 months.” In context, it is clear that

this was just a warning by the district judge that the defendant’s offensive and

scurrilous retort to a proper inquiry by the Probation Officer was entirely

inappropriate, particularly when as the District Court went on to say, the Probation

Officer was simply trying to help the defendant. . No additional condition was

imposed and there would be no basis for filing a future specification for any

supposed violation of this non-existent condition.

      Additionally, Montaque argues that the District Court committed procedural

error in sentencing the defendant without clearly articulating its rationale, and

further that the substance of the sentence imposed was unreasonable. However, as

is the case here, a “within-Guidelines sentence ordinarily needs little explanation,”




                                          -2-
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008), and similarly, a within-

guidelines sentence is usually reasonable, see id. at 994.

      AFFIRMED.




                                         -3-
