                                                                           FILED
                            NOT FOR PUBLICATION                             APR 11 2011

                                                                        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. 10-50274

               Plaintiff - Appellee,             D.C. No. 3:06-cr-02371-BEN

  v.
                                                 MEMORANDUM *
CHRISTIAN WILLIAMS GARCIA-
GARCIA, a.k.a. Sergio Christian Garcia-
Garcia,

               Defendant - Appellant.



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

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Christian Williams Garcia-Garcia appeals from the district court’s judgment

revoking his supervised release, and the resulting 18-month sentence. 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).
      Garcia contends that the revocation procedures set forth in 18 U.S.C.

§ 3583(e)(3) violate his rights under the Fifth and Sixth Amendments, because the

sentence exceeds the statutory maximum the court can impose under the

Guidelines, and because the allegation was not presented to either a grand or petit

jury. This contention is foreclosed. See United States v. Huerta-Pimental, 445

F.3d 1220, 1224-1225 (9th Cir. 2006); see also United States v. Patterson, 230

F.3d 1168, 1170-71 (9th Cir. 2000) (the revocation of supervised release is a

punishment imposed for the original offense).

      Garcia also contends that the imposition of a term of imprisonment upon the

revocation of supervised release violates both the double jeopardy clause of the

Fifth Amendment, and the Separation of Powers doctrine. This contention is also

foreclosed. See United States v. Soto-Olivas, 44 F.3d 788, 789-90 (9th Cir. 1995);

see also United States v. Mejia-Sanchez, 172 F.3d 1172, 1175 (9th Cir. 1999).

      Garcia next contends that the district court relied on impermissible factors

when imposing the revocation sentence. The record reflects that the court did not

rely on any factors specifically excluded by § 3583(e), but focused instead on

Garcia’s breach of the court’s trust. See United States v. Miqbel, 444 F.3d 1173,

1181-83 (9th Cir. 2006). The record further reflects that the court considered the

appropriate sentencing factors under § 3553(a), and provided an adequate


                                          2                                     10-50274
explanation for the sentence imposed. The district court did not procedurally err,

and the sentence was substantively reasonable under the totality of the

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

States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

      Finally, Garcia contends that the district court should have recused itself

based on comments made at the original sentencing hearing that revealed the

court’s bias against him. The district court did not abuse its discretion by declining

to recuse itself. See 28 U.S.C. § 455(b)(1); see also United States v. Monaco, 852

F.2d 1143, 1147 (9th Cir. 1988).

         AFFIRMED.




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