                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2010

                                                                        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. 09-50392

              Plaintiff - Appellee,              D.C. No. 3:07-cr-01578-LAB-1

  v.
                                                 MEMORANDUM *
RUBEN SANAVIA-ARELLANO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

UNITED STATES OF AMERICA,                        No. 09-50425

              Plaintiff - Appellee,              D.C. No. 3:08-cr-02572-W-1

  v.

RUBEN SANAVIA-ARRELLANO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Thomas J. Whelan, District Judge, Presiding

                         Argued and Submitted June 9, 2010
                               Pasadena, California

Before: GOODWIN and RAWLINSON, Circuit Judges, and MARBLEY, District
Judge.**




      1.     Judge Burns committed no procedural error when sentencing Ruben

Sanavia-Arellano (Sanavia-Arellano). Judge Burns properly considered the §

3553(a) factors. See United States v. Dewey, 599 F.3d 1010, 1016 (9th Cir. 2010)

(defining procedural error as “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the §

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

adequately explain the chosen sentence . . .”) (citation omitted).




      2.     Judge Burns did not primarily rely on Sanavia-Arellano’s most recent

illegal reentry to impose sentence. Rather, Judge Burns focused on Sanavia-

Arellano’s failure to keep his promises, i.e., his breach of trust. See United States

v. Hammons, 558 F.3d 1100, 1104 (9th Cir. 2009) (stating that at a revocation



       **
             The Honorable Algenon L. Marbley, District Judge for the Southern
District of Ohio, sitting by designation.

                                     Page 2 of 3
hearing, the sentencing court may impose a sentence for “breach of trust”)

(citations omitted).




      3.     Judge Whelan’s oral pronouncement at the revocation hearing was not

clear and unambiguous. Therefore, the written judgment controls. See Fenner v.

United States Parole Comm’n, 251 F.3d 782, 787 (9th Cir. 2001).




      4.     As clarified in United States v. Xinidakis, 598 F.3d 1213, 1217 (9th

Cir. 2010), a district court judge has discretion to impose a sentence that runs

concurrently or consecutively to a prior undischarged sentence.




AFFIRMED.




                                     Page 3 of 3
