                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 12 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50201

              Plaintiff - Appellee,              D.C. No. 3:07-cr-02703-BEN-1

  v.
                                                 MEMORANDUM*
FROY SERRATO-CESAREO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                             Submitted June 5, 2014**
                               Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and ENGLAND, Chief District
Judge.***




        *
             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).
        ***
              The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by designation.
      1. The district court did not plainly err by delaying Froy Serrato-Cesareo’s

revocation sentencing. Federal Rule of Criminal Procedure 32.1 “‘primarily’

governs . . . post-revocation sentencing[s].” United States v. Whitlock, 639 F.3d

935, 940 (9th Cir. 2011). Rule 32.1(b)(2) requires “the court [to] hold the

revocation hearing within a reasonable time.” Here, any violation of Rule 32.1’s

timeliness requirement was not “clear” or “obvious” under current law. See United

States v. Olano, 507 U.S. 725, 734 (1993). Given Whitlock, even if United States

v. Carper, 24 F.3d 1157 (9th Cir. 1994), suggests application of Rule 32,

application of Rule 32.1’s reasonableness standard would not constitute plain error.

      2. Any violation of Serrato-Cesareo’s due process right to a prompt hearing

is not “plain,” because it is not “clear” or “obvious” under current law that the

delay was unreasonable. See Olano, 507 U.S. at 734. “[O]ur cases considering

due process claims for revocation proceedings have held that relief is not called for

unless there was both unreasonable delay and prejudice.” United States v.

Santana, 526 F.3d 1257, 1260 (9th Cir. 2008). The delay of two months in this

case is less than the delays at issue in both Santana, 526 F.3d at 1259-61 (121

days), and United States v. Wickham, 618 F.2d 1307, 1310-11 (9th Cir. 1979)

(seven months), where this court found no violations of due process. Furthermore,

this court has never held that delaying a revocation sentencing until after the


                                           2
violator has been sentenced on the underlying criminal conduct constitutes an

improper reason for delay or that it makes a delay in sentencing unreasonable.

      3. The district court did not abuse its discretion by imposing a sentence that

fell within the Guideline range. The district court’s decision was not substantively

unreasonable, because, in addition to the imposition of punishment for the crime

underlying the revocation, “a court may properly ‘sanction the violator for failing

to abide by the conditions of the court-ordered supervision.’” United States v.

Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (citation omitted).

      AFFIRMED.




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