                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 13 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10525

              Plaintiff - Appellee,              D.C. No. 2:99-cr-00102-ROS-1

  v.
                                                 MEMORANDUM*
RICARDO MONTALVO, AKA Richardo
Montalvo,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                          Submitted November 7, 2013**
                              Pasadena, California

Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.

       Ricardo Montalvo appeals his sentence of 51 months upon revocation of his

term of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review “the district court’s interpretation of the Sentencing Guidelines de novo, the

        *
             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).
district court’s application of the Guidelines to the facts for abuse of discretion, . . .

the district court’s factual findings for clear error,” United States v. Armstead, 552

F.3d 769, 776 (9th Cir. 2008) (internal citations omitted), and the district court’s

consideration of non-binding policy statements for abuse of discretion. United States

v. Miqbel, 444 F.3d 1173 (9th Cir. 2006). We review the substantive reasonableness

of the sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 51

(2007). “When a defendant does not raise an objection to his sentence before the

district court, we apply plain error review.” United States v. Hammons, 558 F.3d 1100,

1103 (9th Cir. 2009).

      In 1999, Montalvo was sentenced to 156 months’ imprisonment, followed by

a term of 60 months’ supervised release. In 2011, his supervised release was revoked,

and he was sentenced to 9 months’ imprisonment and 51 months’ supervised release.

He was released on July 20, 2012, and on August 12, 2012, was arrested for driving

while impaired. On August 21, 2012, after reporting to the U.S. probation office, he

admitted to consuming alcohol before taking a Breathalyzer test. Upon revocation of

his supervised release, he was sentenced to serve the remaining 51 months of his

supervised release term in prison. The parties agree that the 51-month sentence

exceeded the advisory Guidelines range.




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       We review sentences imposed inside or outside the Guidelines range via a two-

step inquiry. We must “first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any deviation

from the Guidelines range.” Gall, 552 U.S. at 51. We then consider the “substantive

reasonableness of the sentence imposed under an abuse of discretion standard,” taking

into account “the totality of the circumstances,” but “not apply[ing] a presumption of

unreasonableness.” Id. In considering substantive reasonableness, we “may consider

the extent of the deviation [from the Guidelines range], but must give due deference

to the district court's decision that the § 3553(a) factors, on a whole, justify the extent

of the variance.” Id.

       Montalvo argues that his sentence was procedurally defective because the judge

did not adequately justify the sentence, or because the judge justified the sentence by

reference to rehabilitative needs, or because the sentence was based on another “illegal

factor,” like “promoting respect for the law” or imposing a prison term “with the

primary basis being punishment.” The record does not support Montalvo’s arguments.

The district court considered the factors under 18 U.S.C. § 3583(e), which governs


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termination, extension, or revocation of a term of supervised release, and its

explanation was not perfunctory or procedurally defective. The court did not

improperly consider “rehabilitative needs,” and the sentence was not given to promote

improper ends.

      In the alternative, Montalvo argues that the sentence was not reasonable

because it was higher than what the government requested and higher than sentences

given to others for arguably more serious offenses. Under 18 U.S.C. § 3583(e)(3), the

district court may revoke a defendant’s supervised release and require the defendant

to serve all or part of the term of the sentence in prison. The statute requires the

district court to consider certain factors, among them the need to deter criminal

conduct and protect the public. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C). The district

court may reject the advisory Guidelines range so long as it considers the policy

statements published in Chapter 7 of the Guidelines. United States v. Garcia, 323 F.3d

1161, 1164 (9th Cir. 2003). Here, the record shows that the district court considered

the required factors, was specifically concerned about public safety and Montalvo’s

danger to others, and made a reasoned decision to reject the defendant’s requests for

leniency. The district court did not abuse its discretion in imposing the sentence.

      Montalvo’s Eighth Amendment argument is similarly unavailing, because his

sentence was not grossly disproportionate to his crime. The district court sentenced


                                          -4-
Montalvo to serve the remaining 51 months of his sentence, the statutory maximum.

“Generally, as long as the sentence imposed on a defendant does not exceed statutory

limits, this court will not overturn it on Eighth Amendment grounds.” United States

v. Parker, 241 F.3d 1114, 1117 (9th Cir. 2001).

      We are not persuaded by Montalvo’s further argument that the 2003

amendment to 18 U.S.C. § 3583(e)(3) has the potential to create a cycle of sentencing

that could lead to a life sentence. We have held that “the maximum term of supervised

release to be imposed following multiple revocations of supervised release must be

reduced by the aggregate length of any and all terms of imprisonment that have been

imposed upon revocation of supervised release.” United States v. Knight, 580 F.3d

933, 940 (9th Cir. 2009) (emphasis removed).

      Finally, Montalvo’s claim that his counsel was ineffective for failing to raise

these issues at sentencing is more properly brought in a proceeding under 28 U.S.C.

§ 2255. Massaro v. United States, 538 U.S. 500, 504 (2003) (noting that “in most

cases a motion brought under § 2255 is preferable to direct appeal for deciding claims

of ineffective assistance.”) We therefore decline to reach this issue.

      AFFIRMED.




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