                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 26 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30274

               Plaintiff-Appellee,               D.C. No. 6:95-cr-60087-MC-1

 v.
                                                 MEMORANDUM*
ERNEST JOSEPH BISSON,

               Defendant-Appellant.


                    Appeal from the United States District Court
                              for the District of Oregon
                    Michael J. McShane, District Judge, Presiding

                            Submitted August 16, 2016**

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

      Ernest Joseph Bisson appeals from the district court’s judgment and

challenges the 12-month consecutive sentence imposed upon 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).
      Bisson contends that the district court should not have imposed any prison

time for his supervised release violation because he served 189 months for his

underlying conviction, 69 months more than the 120 month statutory maximum

that he contends would apply under Johnson v. United States, 135 S. Ct. 2551

(2015). Even assuming that Bisson is correct that he served too much time for his

underlying conviction, his claim fails. It is undisputed that Bisson was on

supervised release when he committed the violation. The record shows that the

district court took into account Bisson’s Johnson argument and imposed a below-

Guidelines sentence. The court’s failure to impose an even lower sentence was not

an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The

sentence is substantively reasonable in light of the 18 U.S.C. § 3583(e) factors and

the totality of circumstances, including Bisson’s poor performance on supervision.

See Gall, 552 U.S. at 51; United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.

2007).

      AFFIRMED.




                                          2                                   15-30274
