United States of America v. Clinton Wayne Warrington

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLINTON WAYNE WARRINGTON,
Defendant-Appellant.
No. 22-10082
DC No. 2:18-cr-00146-KJD
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted November 18, 2022
San Francisco, California
Before: TASHIMA and PAEZ, Circuit Judges, and SESSIONS III,** District
Judge.
Clinton Wayne Warrington appeals from the district court’s judgment
FILED
DEC 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.

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revoking supervised release and imposing a 13-month sentence. We have
jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s decision to
revoke supervised release, but vacate Warrington’s sentence and remand for
resentencing.
1. Warrington contends that the district court erred by denying his
motion for a one-week continuance so he could undergo a full psychiatric
evaluation by a third party, which could have supported his claim that he suffers
from fetal alcohol syndrome disorder. Applying the four-factor test from United
States v. Rivera-Guerrero, 426 F.3d 1130, 1138–39 (9th Cir. 2005), we conclude
that the district court did not abuse its discretion in denying the continuance. As
reflected in Warrington’s presentence report and sentencing memorandum, which
were prepared in connection with his 2019 conviction, Warrington has long stated
that he suffers from fetal alcohol syndrome disorder. However, his medical
records show that none of his prior psychological evaluations, one of which was
conducted just a few months before the revocation hearing, has resulted in a
diagnosis of fetal alcohol syndrome disorder. Although Warrington’s counsel
asserted that an evaluation could be conducted even without a continuance, he did
not explain how he would obtain such an evaluation in the short period of time he
was requesting. Cf. United States v. Pope, 841 F.2d 954, 957 (9th Cir. 1988)
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(concluding the fact that a psychiatrist “was available and had expressed a
willingness to conduct the examination, indicates his testimony could have been
obtained had the court granted the continuance”). Given these circumstances, and
the lack of likelihood that yet another psychiatric evaluation would have produced
a different result, the district court did not abuse its discretion in denying the one-
week continuance, and we affirm its decision to revoke supervised release.
2. Turning to his sentence, Warrington contends that the district court
impermissibly sought to promote rehabilitation when it selected the length of his
sentence, in contravention of the Supreme Court decision in Tapia v. United States,
564 U.S. 319, 335 (2011), and our decision in United States v. Grant, 664 F.3d
276, 279–80 (9th Cir. 2011) (applying Tapia to revocation proceedings). Because
Warrington did not raise this claim below, we review for plain error. See id. at
279. The district court discussed, in general terms, the need to impose more than a
“slap on the wrist” to obtain Warrington’s compliance with his supervised release
terms. However, the only specific explanation the court provided for its selection
of a 13-month sentence was that “the defendant needs to be designated to the
medical facility . . . and for a sufficient period of time to figure out if he, in fact,
needs medication.” Because this statement may reflect that the district court chose
a 13-month sentence to meet Warrington’s rehabilitative needs, the court plainly
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erred. See Tapia, 564 U.S. at 321–22; Grant, 664 F.3d at 279.
We also agree with Warrington that the district court plainly erred by failing
to calculate the Guidelines range at sentencing. The court did not announce the
range, and nothing in the record shows that the court was aware of the applicable
range or that it used the range as a “starting point” for its sentencing decision. See
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1910 (2018).
Together, these errors suggest that Warrington may have received a lower
sentence had the district court followed proper sentencing procedures.
Accordingly, we exercise our discretion to vacate Warrington’s sentence and
remand for resentencing. See United States v. Olano, 507 U.S. 725, 732 (1993)
(holding that court of appeals should exercise its discretion to correct a forfeited
error if the error “seriously affects the fairness, integrity or public reputation of
judicial proceedings” (cleaned up)); United States v. Hammons, 558 F.3d 1100,
1105-06 (9th Cir. 2009) (holding that all four prongs of the plain error standard
were met because the district court might have imposed a longer sentence as a
result of its errors).
• ! •
In light of this disposition, we do not reach Warrington’s remaining
sentencing claims.
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Revocation of supervised release AFFIRMED; sentence VACATED; and
REMANDED for resentencing.
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