                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         SEP 23 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                        No. 14-50252

               Plaintiff - Appellee,              D.C. No. 2:13-cr-00352-MWF

     v.
                                                  MEMORANDUM*
 MELVIN FOSTER,

               Defendant - Appellant.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                          Submitted September 21, 2015**

Before:      REINHARDT, LEAVY, and BERZON, Circuit Judges.

      Melvin Foster appeals from the district court’s judgment and challenges the

21-month sentence imposed upon revocation of supervised release. We have

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

      Foster contends that the district court erred by failing to consider his

      *
             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).
sentencing arguments and by improperly focusing on the seriousness of his original

offense and the offense underlying the revocation. We review for plain error, see

United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find

none. The record reflects that the district court considered Foster’s arguments

and did not base the sentence on any improper considerations.      See United States

v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007).

      Foster next contends that the district court erred by basing the sentence on

clearly erroneous facts. Though the court incorrectly stated that Foster’s

underlying conviction was a Class A felony, Foster has not shown a reasonable

probability that he would have received a different sentence absent the error. See

United States v. Christensen, 732 F.3d 1094, 1101-02 (9th Cir. 2013). Moreover,

to the extent that the district court relied on the government’s sentencing argument

in imposing the sentence, Foster has not shown that the government asserted any

clearly erroneous facts.

      Finally, Foster contends that the sentence is substantively unreasonable.

The district court did not abuse its discretion.   See Gall v. United States, 552 U.S.

38, 51 (2007). The below-Guidelines sentence is substantively reasonable in light

of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances,

                                           2                                   14-50252
including Foster’s repeated breaches of the court’s trust and the need to protect the

public. See Gall, 552 U.S. at 51.

      All pending motions are denied.

      AFFIRMED.




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