                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 21 2017

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 17-30078
                                                      17-30079
               Plaintiff - Appellee,
                                                 D.C. Nos. 9:08-cr-00038-DWM
  v.                                                       9:10-cr-00001-DWM

DONALD JOSEPH SCHWINDT,
                                                 MEMORANDUM*
               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                           Submitted December 18, 2017**

Before:        WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

       In these consolidated appeals, Donald Joseph Schwindt appeals the seven-

month concurrent sentences imposed following the revocation of his 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 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).
      Schwindt argues that the district court erred when it determined that he had

violated supervised release by committing criminal trespass under Montana Code

Annotated section 45-6-203. He contends that this error resulted in a substantively

unreasonable sentence. The government rightly concedes that, because it

presented no evidence that the land was posted, it did not establish that Schwindt

had criminally trespassed. See State v. Trujillo, 180 P.3d 1153, 1156 (Mont.

2008). We nevertheless affirm.

      Schwindt admits that the court correctly calculated the Guidelines range on

the basis of his commission of another Grade C violation. There is no evidence in

the record that the district court relied upon the trespass violation in reaching its

sentencing decision. Instead, the court found that the seven-month sentence was

appropriate because of Schwindt’s repeated failure to abide by the terms of his

supervised release despite his probation officer’s guidance. Under these

circumstances, the court’s error with respect to the trespassing violation was

harmless. Moreover, the below-Guidelines sentence was substantively reasonable

in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the

circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




                                            2                           17-30078 & 17-30079
