                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50429

                Plaintiff-Appellee,             D.C. No. 2:17-cr-00102-SVW

 v.
                                                MEMORANDUM*
MALCOLM KING NELSON,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                           Submitted August 15, 2018**

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

      Malcolm King Nelson appeals from the district court’s judgment revoking

his supervised release and challenges the 11-month sentence imposed upon

revocation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Nelson contends that the district court erred by basing the sentence primarily



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
on the severity of his supervised release violations, including his two arrests for

driving under the influence of alcohol. Because Nelson did not raise this objection

in the district court, we review for plain error. See United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). Even if the district court plainly

erred by primarily focusing on the seriousness of Nelson’s new criminal conduct,

see 18 U.S.C. § 3583(e); United States v. Simtob, 485 F.3d 1058, 1063-64 (9th Cir.

2007), Nelson has not demonstrated a reasonable probability that he would have

received a different sentence absent the error. See United States v. Dallman, 533

F.3d 755, 762 (9th Cir. 2008). Given the court’s expressed concern about Nelson’s

eight violations of the terms of his supervised release and the need to protect the

public from the danger posed by Nelson’s conduct, a permissible sentencing

consideration, we conclude that the district court would have imposed the same

sentence absent any consideration of the 18 U.S.C. § 3553(a)(2)(A) sentencing

factors.

      AFFIRMED.




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