                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 24 2011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. 10-10048

               Plaintiff - Appellee,              D.C. No. 2:04-cr-00215-MCE

  v.
                                                  MEMORANDUM *
JOSE JAVIER MANCILLA-
CALDERON,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Morrison C. England, District Judge, Presiding

                                  January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       Jose Javier Mancilla-Calderon appeals from the revocation of his supervised

release and the 24-month sentence imposed following revocation. 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).
      Mancilla-Calderon contends that the district court violated his due process

rights by basing its sentence on charged but unconvicted state law offenses—which

had been dismissed as bases for revocation—without providing Mancilla-Calderon

an opportunity to rebut the allegations. However, given the district court’s

statement, upon objection from defense counsel, that the references to state law

offenses had not affected its choice of sentence, any error was harmless. See

United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (describing standard).

      Mancilla-Calderon further contends that the court erred by failing adequately

to explain the sentence. Striking the references to the state law conduct, the court’s

explanation for the sentence it imposed was adequate. See United States v. Carty,

520 F.3d 984, 992 (9th Cir. 2008) (en banc). Finally, we cannot say that the

district court abused its discretion in imposing the 24-month sentence. See id. at

993; see also United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007) (where

defendant violates supervised release by committing same offense for which he

was placed on supervised release, “greater sanctions may be required to deter

future criminal activity”).

      AFFIRMED.




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