                                                                            FILED
                           NOT FOR PUBLICATION                              OCT 31 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50128

              Plaintiff-Appellee,                D.C. No. 3:11-cr-01731-BEN

 v.
                                                 MEMORANDUM*
ADAM E. JACOVINO,

              Defendant-Appellant.


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

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and GOULD, Circuit Judges.

      Adam E. Jacovino appeals from the district court’s judgment and challenges

the 12-month sentence imposed upon his fourth revocation of supervised release.

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 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).
      Citing the district court’s statement during a prior revocation hearing that

any future violation of supervised release would result in a 12-month custodial

sentence, Jacovino argues the district court should have granted his motion for

recusal. We review the district court’s denial of a recusal motion for abuse of

discretion. See United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012).

The district court did not abuse its discretion in denying Jacovino’s motion because

the motion was unsupported by evidence that would cause “a reasonable person

with knowledge of all the facts” to question the judge’s impartiality. See id.

(internal quotation marks omitted); see also United States v. Rangel, 697 F.3d 795,

804 (9th Cir. 2012) (judge’s conduct during the course of the case does not provide

a basis for recusal “except in the rarest of circumstances” (internal quotation marks

omitted)).

      Jacovino also contends that the district court procedurally erred by failing to

consider the 18 U.S.C. § 3583(e) sentencing factors, instead basing the sentence

exclusively on the promise made to him by the court at the third revocation

hearing. Because Jacovino did not raise this objection before the district court, we

review for plain error. See United States v. Valencia-Barragan, 608 F.3d 1103,

1108 (9th Cir. 2010). Contrary to Jacovino’s argument, the record reflects that the

district court considered the parties’ arguments and the statutory sentencing factors


                                          2                                      16-50128
before imposing sentence. The court imposed sentence on the basis of Jacovino’s

breach of the court’s trust, a permissible sentencing factor. See United States v.

Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007) (at a revocation sentencing, the court

may sanction the violator for his breach of trust).

      AFFIRMED.




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