                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 20 2010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. 09-50605

               Plaintiff - Appellee,             D.C. No. 3:08-cr-03094-LAB

  v.
                                                 MEMORANDUM *
RICARDO MORGUTIA, Jr.,

               Defendant - Appellant.



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

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Ricardo Morgutia, Jr., appeals from the twelve-month sentence imposed

upon revocation of supervised release. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

       Morgutia contends that the district court committed plain procedural error 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).
relying on a sentencing factor not permissibly considered upon revocation of

supervised release, failing to calculate his Guidelines range, and failing to consider

the applicable factors set forth at 18 U.S.C. § 3553(a). The record indicates that

the district court did not rely on impermissible sentencing factors. See United

States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006) (“[A]t a revocation

sentencing, a court may appropriately sanction a violator for his ‘breach of

trust[.]’”).

       In addition, Morgutia has not shown that the district court’s failure to

expressly calculate the Guidelines range affected Morgutia’s substantial rights.

Defense counsel accurately told the court that the Guidelines range was four to ten

months, the government did not dispute it, and the court said that it was departing

upward from this range, all of which demonstrate that the court consciously

considered the proper Guidelines during the sentencing process. Cf. United States

v. Hammons, 558 F.3d 1100, 1105-06 (9th Cir. 2009) (substantial rights affected

where court did not calculate Guidelines range and probation report included

incorrect criminal history category); United States v. Waknine, 543 F.3d 546, 554

(9th Cir. 2008) (failure to calculate Guidelines range was reversible plain error in

combination with other procedural errors). Moreover, under the circumstances, the

court sufficiently explained its reasons for the sentence it imposed. See United


                                           2                                      09-50605
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc); cf. Hammons, 558

F.3d at 1104 (reversing where court provided no explanation for sentence);

Waknine, 543 F.3d at 554 (same).

      AFFIRMED.




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