United States of America v. OSCAR ANTONIO OLIVAS, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR ANTONIO OLIVAS, Jr.,
Defendant-Appellant.
No. 18-10029
D.C. No. 2:16-cr-01048-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Oscar Antonio Olivas, Jr., appeals from the district court’s judgment and
challenges the 27-month sentence imposed following his guilty-plea conviction for
escape from custody, in violation of 18 U.S.C. §§ 751(a) and 4082(a). 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 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
SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-10029
Olivas contends that the district court procedurally erred by failing to
explain his sentence adequately, in particular its decision to make the sentence
consecutive to his undischarged sentences. He further contends that insofar as the
district court relied on his drug use as a basis to reject his sentencing
recommendation, such reliance would constitute cruel and unusual punishment in
violation of the Eighth Amendment. The record shows that the district court
believed that a 27-month consecutive sentence was warranted, notwithstanding its
effect on the total length of Olivas’s incarceration. The district court addressed
Olivas’s mitigating arguments and did not err by failing to provide a fuller
explanation. See Rita v. United States, 551 U.S. 338, 358-59 (2007). Moreover,
the record shows that the district court appropriately considered Olivia’s drug use
when discussing his post-escape conduct and did not punish Olivas for relapsing.
Olivas also contends that the sentence is substantively unreasonable in light
of the nonviolent nature of his offenses and his history of drug addiction and
childhood trauma. The district court did not abuse its discretion. See Gall v.
United States, 552 U.S. 38, 51 (2007). The within-Guidelines sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and
the totality of the circumstances, including Olivas’s criminal history and failure to
surrender. See Gall, 552 U.S. at 51.
AFFIRMED.

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