                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 19 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50155

             Plaintiff - Appellee,               D.C. No. 3:04-CR-00253-H-1

 v.
                                                 ORDER AMENDING
FRANCISCO KELLY-PALMER,

             Defendant - Appellant.




Before: FRIEDMAN,* D.W. NELSON, and REINHARDT, Circuit Judges.

      The memorandum disposition filed on April 29, 2010, is amended as

follows:

      After the first sentence of the paragraph numbered “2" on page 4, delete the

next two sentences beginning with “Although those prior violations” and ending

with “setting his sentence.” In place of the deleted sentences, insert the following

two sentences:



      *
               Daniel M. Friedman, United States Circuit Judge for the Federal
Circuit, sitting by designation.
            2. 18 U.S.C. § 3553(a)(2)(B) requires the sentencing

      court to consider a sentence that “afford[s] adequate deterrence

      to criminal conduct,” and the district court properly concluded

      that the imposition of a period of supervised release had

      repeatedly failed to deter Kelly-Palmer from further criminal

      conduct involving illegal reentry, in violation of supervised

      release. Kelly-Palmer’s previous supervised release violations

      were therefore pertinent in setting his sentence.

The next sentence beginning “In view of” should be a separate paragraph.

The amended part 2 now reads as follows:

      2. The district court properly relied upon Kelly-Palmer’s

      previous violations of supervised release in determining the

      sentence. 18 U.S.C. § 3553(a)(2)(B) requires the sentencing

      court to consider a sentence that “afford[s] adequate deterrence

      to criminal conduct,” and the district court properly concluded

      that the imposition of a period of supervised release had

      repeatedly failed to deter Kelly-Palmer from further criminal

      conduct involving illegal reentry, in violation of supervised


                                   2
            release. Kelly-Palmer’s previous supervised release violations

            were therefore pertinent in setting his sentence.

                  In view of those facts and the Sentencing Guidelines direction

            that “imprisonment imposed upon the revocation of . . . supervised

            release shall . . . be served consecutively to any sentence of

            imprisonment that the defendant is serving,” U.S.S.G. § 7B1.3(f), the

            consecutive sentence was reasonable.

            The petition for rehearing and petition for rehearing en banc are

still pending. No further petitions shall be entertained.




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