                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 28 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-50247

              Plaintiff - Appellee,              D.C. No. 3:10-cr-01938-GT-1

  v.
                                                 MEMORANDUM *
MARTIN CASTRO-AVILES,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                Gordon Thompson, Senior District Judge, Presiding

                           Submitted February 8, 2013 **
                              Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

       A defendant facing the determination of a sentence for a violation of

supervised release has a right to present mitigating evidence on his own behalf.

United States v. Diaz-Burgos, 601 F.2d 983, 985-86 (9th Cir. 1979) (per curiam);


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Fed. R. Crim. P. 32.1(b)(2)(E). Here, Castro-Aviles’s mitigating evidence -- which

counsel asserts the district court ignored -- was that his mental condition when he

attempted for a second time illegally to cross the border was substantially impaired

by a serious illness. Counsel argues that he was not able “to think for himself.”

      Contrary to counsel’s assertions, the record demonstrates that Castro-Aviles

was adequately allowed to present his mitigating evidence. He did so in his

counsel’s thorough sentencing memorandum, which was supported by relevant

medical reports and a transcript containing, in translation from Spanish to English,

the material parts of a recorded conversation purportedly corroborating his

assertions of his confused and disoriented mental state at the time of the violation.

Moreover, counsel extensively argued this point and his supporting evidence

without interruption during the sentencing hearing.

      Castro-Aviles complains that the district court did not personally review the

DVD of the recorded conversation, only the transcript. We begin by noting that

there is no request in the sentencing memorandum that the court view the DVD

before the hearing. When the court indicated during the hearing that it had not

done so, counsel did not object to what he now claims was a Due Process and a

Federal Rule of Criminal Procedure Rule 32.1 violation and he did not request the

court then to view it or offer to show it as evidence on his client’s behalf. Instead,


                                           2
counsel opted to rely on the transcript of the recorded conversation which counsel

argued adequately proved his point and which the court had read and considered.

The district court thus did not err when it did not view the DVD. Diaz-Burgos, on

which counsel relies, is plainly distinguishable on its facts and therefore inapposite.

In that case, unlike here, the district court flatly refused to consider mitigating

evidence. 601 F.2d at 985-96.

      Second, counsel argues that the district court gave no reason for choosing a

mid-Guidelines sentence lower than the sentence recommended by the Probation

Officer. This argument also has no merit. The Guidelines range was only twelve

to eighteen months. The record as a whole adequately demonstrates that Castro-

Aviles’s violation occurred less than one year after supervised release was

imposed, and that the violation was a repeat offense. See United States v. Simtob,

485 F.3d 1058, 1063 (9th Cir. 2007) (repeat supervised release violators may need

“greater sanctions” to “deter future criminal activity”). Moreover, the defendant

had a significant criminal record, category IV. The district court identified “these

circumstances” in choosing the defendant’s sentence, circumstances which

correspond to the 18 U.S.C. § 3553 and § 3583(e) factors. See United States v.

Hammons, 558 F.3d 1100, 1104 (9th Cir. 2009) (“adequate explanation in some

cases may also be inferred from the PSR or the record” (internal quotation marks


                                            3
omitted)); United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)

(“[A] sufficient explanation will necessarily vary depending upon the complexity

of the particular case . . . .”).

       If anything, the defendant as a budding serial recidivist was fortunate not to

be treated more harshly. Given the record, his plea for time served was not

appropriate. On the other hand, the court’s choice of a lenient fifteen-month

sentence against the Probation Officer’s recommendation of eighteen months finds

support in the very evidence counsel claims was not considered, the evidence of his

mental and physical health condition.1

       AFFIRMED.




       1
           Castro-Aviles’s excerpt of record is not appropriately “consecutively
paginated” as required Ninth Circuit Rule 30-1. The numbers for pages 14-29 are
not legible. Counsel shall avoid this mistake in the future.

                                           4
