                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             APR 08 2013

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

 UNITED STATES OF AMERICA,                            No. 11-10266

               Plaintiff - Appellee,                  D.C. No.
                                                      4:04-cr-02195-CKJ-BPV-1
   v.

 MARY ELIZABETH SCHIPKE,
                                                      MEMORANDUM*
               Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                            Submitted February 12, 2013**
                               Stanford, California

Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.

        Mary Elizabeth Schipke appeals the district court’s second revocation of

supervised release and imposition of fourteen months imprisonment followed by


        *
           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).
two years of supervised release. We affirm.

      1. A standard condition of Schipke’s supervised release was that she “not

commit another federal, state, or local crime during the term of supervision.” The

district court’s finding that Schipke violated supervised release, because she

committed harassment, in violation of Arizona Revised Statute § 13-2921(A)(1),

was not an abuse of discretion. United States v. Daniel, 209 F.3d 1091, 1094 (9th

Cir. 2000), amended on other grounds by 216 F.3d 1201 (9th Cir. 2000).

      After an evidentiary hearing, the district court found that Schipke contacted

the chambers of Judge John Roll on the first business day after his murder in order

to knowingly or intentionally harass his staff. Testimony by court staff and

Schipke supports by a preponderance of the evidence the district court’s conclusion

that Schipke’s inflammatory comments would cause a reasonable person to be

harassed and that her comments indeed had such an effect on court staff. See Ariz.

Rev. Stat. § 13-2921; 18 U.S.C. § 3583(e)(3). Because the district court’s factual

findings regarding the harassing phone calls were not clearly erroneous, there was

no abuse of discretion. See United States v. Lomayaoma, 86 F.3d 142, 146-47 (9th

Cir. 1996).

      2. The district court’s finding that Schipke violated supervised release,

because she committed trespass, in violation of Arizona Revised Statute § 13-


                                          2
1502(A)(1), was also not an abuse of discretion. The district court found that

Schipke knowingly entered or remained in the cordoned off media area at the

Together We Thrive: Tucson and America memorial service after a reasonable

request to leave by law enforcement. Testimony by security personnel who were

working at the memorial service supports by a preponderance of the evidence the

district court’s conclusion that when Schipke was found protesting in the media

area she refused to leave after being asked to do so. See Ariz. Rev. Stat. § 13-

1502(A)(1). Because the district court’s factual findings about Schipke’s refusal to

leave were not clearly erroneous, there was no abuse of discretion. See

Lomayaoma, 86 F.3d at 147.

      3. The district court sentenced Schipke to fourteen months imprisonment

followed by two years of supervised release. This sentence was not unreasonable.

See United States v. Simtob, 485 F.3d 1058, 1061 (9th Cir. 2007). Before

sentencing, the district court considered Schipke’s physical and mental health, the

underlying terrorism offense, and testimony in support of Schipke’s character.

However, the court noted that it could not ignore Schipke’s disturbing criminal

history, including very violent behavior. The court sentenced Schipke based on

her escalating behavior and recommended incarceration at a medical facility or

mental health facility. The sentence imposed was within the recommended 8-14


                                          3
months range of imprisonment under the Sentencing Guidelines, and the district

court had discretion to impose an additional term of supervised release. See

U.S.S.G. § 7B1.4(a); 18 U.S.C. § 3583(a).

      Further, the sentence was not cruel and unusual punishment under the Eighth

Amendment. Schipke fails to explain how this sentence was either inherently

barbaric or grossly disproportionate to her offenses of harassment and trespass.

See Graham v. Florida, 130 S. Ct. 2011, 2021 (2010); United States v. Williams,

636 F.3d 1229, 1232 (9th Cir. 2011).

      AFFIRMED.1




      1
        We have taken under advisement Schipke’s counsel’s emergency request to
file under seal and ex parte a motion to withdraw as counsel. For good cause
shown, we GRANT the request to file under seal and ex parte. Fed. R. App. P. 27-
13. We also GRANT counsel’s motion to be relieved.
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