                                                                           FILED
                            NOT FOR PUBLICATION                             APR 03 2012

                                                                        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. 11-10384

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00186-PMP-
                                                 PAL-2
  v.

FREDERICK JOHN RIZZOLO, AKA                      MEMORANDUM *
Rick Rizzolo,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                       Argued and Submitted March 19, 2012
                                Las Vegas, Nevada

Before: CLIFTON, BYBEE, and N.R. SMITH, Circuit Judges.

       Frederick Rizzolo appeals the final judgment in his criminal case for

violation of the terms and conditions of his probation. The court revoked his

supervised release and imposed a sentence of nine months’ incarceration followed




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
by twenty-four months of supervised release. We have jurisdiction under 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm.

      1. The district court’s decision to allow a statement from the Henrys’ lawyer

on their behalf was not an abuse of discretion, even though the Henrys did not

qualify as a statutorily-recognized “victim” under 18 U.S.C. § 3771 (the Crime

Victims’ Rights Act, “CVRA”).

      At sentencing, the district court has a wide range of discretion in admitting

whatever evidence it deems relevant. See Nichols v. United States, 511 U.S. 738,

747 (1994). Indeed, “under the Guidelines, a sentencing judge ‘may consider,

without limitation, any information concerning the background, character and

conduct of the defendant, unless otherwise prohibited by law.’” United States v.

Jones, 114 F.3d 896, 898 (9th Cir. 1997) (emphasis added) (quoting U.S.S.G.

§ 1B1.4).

      None of the authorities relied upon by Rizzolo prohibited the Henrys’ lawyer

from making a statement. The CVRA, 18 U.S.C. § 3771, and Rule 32(i) of the

Federal Rules of Criminal Procedure merely mandate situations where the district

court must allow individuals to be heard. However, these provisions say nothing

about prohibiting individuals from being heard. Therefore, while Rizzolo is

correct that the district court was not required to allow the Henrys’ lawyer to speak


                                          2
on their behalf as victims under the CVRA, Rizzolo is incorrect when he argues

that the district court still had no discretion to allow the lawyer to be heard.

      The district court carefully explained its reasons for allowing the Henrys’

lawyer to make a statement. Because those reasons were not implausible or

illogical, the district court did not abuse its discretion. See United States v.

Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).

      2. Even if the district court did abuse its discretion, Rizzolo suffered no

prejudice from this error. Rizzolo does not challenge the district court’s findings

that he committed the alleged acts violating the terms and conditions of his

probation. Rizzolo also does not claim that these facts were insufficient to support

the district court’s revocation decision under the “preponderance” standard. See 18

U.S.C. § 3583(e). In addition, the record does not indicate that the district court

judge relied on the plaintiffs’ counsel’s statements in making its sentencing




                                            3
determination. Accordingly, any error Rizzolo suffered regarding this statement

was not prejudicial.1

      AFFIRMED.




      1
         Under Federal Rule of Appellate Procedure 28(j), Rizzolo filed a letter
arguing that, in United States v. Grant, 664 F.3d 276, 282 (9th Cir. 2011), we
applied the rule from Tapia v. United States, __ U.S. __, 131 S. Ct. 2382 (2011) to
prohibit the district court from considering retribution as a purpose for imprisoning
someone for violating conditions of supervised release. Rule 28(j) letters may
include additional authorities discovered after the filing of the brief. Fed. R. App.
P. 28(j). However, a Rule 28(j) letter “cannot raise a new issue” that was not
addressed in the briefs. United States v. LaPierre, 998 F.2d 1460, 1466 n.5 (9th
Cir. 1993). Thus, the issue Rizzolo raised is not properly before us, because it
contained additional argument never discussed in either his opening or reply brief.

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