United States of America v. Donavan Lee Gomez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONAVAN LEE GOMEZ,
Defendant - Appellant.
No. 23-325
D.C. No.
2:18-cr-00137-DCN-1
District of Idaho, Pocatello
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
David C. Nye, District Judge, Presiding
Submitted November 14, 2023**
Before: SILVERMAN, WARDLAW, and TALLMAN, Circuit Judges.
Donavan Lee Gomez appeals from the district court’s judgment and
challenges the 24-month sentence imposed upon the second revocation of his
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gomez contends that the district court erred by failing to explain the
* 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).
FILED
NOV 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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sentence adequately and by improperly imposing the sentence to punish him. We
review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and conclude that there is none. The record reflects that the
district court listened to Gomez’s mitigating arguments, with which it was already
familiar. The court explained that an above-Guidelines, statutory maximum
sentence was warranted in light of Gomez’s repeated non-compliance with court
orders despite previous exercises of leniency. See United States v. Carty, 520 F.3d
984, 992 (9th Cir. 2008) (en banc). Moreover, the record reflects that the district
court relied on only proper sentencing factors, including Gomez’s multiple
breaches of the court’s trust and undisputed unsuitability for supervised release.
See 18 U.S.C. § 3583(e); United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir.
2007).
Gomez also contends that the sentence is substantively unreasonable in light
of his mitigating circumstances and because a shorter sentence would have sufficed
to address his non-compliance. In light of the § 3583(e) sentencing factors and the
totality of the circumstances, however, the district court did not abuse its
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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