United States of America v. JOSHUA CROFT, AKA Truth

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA CROFT, AKA Truth,
Defendant-Appellant.
Nos. 22-10119
22-10120
D.C. Nos.
2:13-cr-00054-KJD-DJA-1
2:13-cr-00019-KJD-DJA-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted April 17, 2023**
Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.
In these consolidated appeals, Joshua Croft appeals from the judgments
revoking his supervised release and imposing 30-month consecutive sentences.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part,
* 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). Accordingly, Croft’s motion
to waive oral argument is granted.
FILED
APR 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-10119 & 22-10120
and remand for resentencing.
Croft contends that there was insufficient evidence to support the district
court’s finding that he violated the terms of his supervised release, and that the
court violated his due process rights by denying his motion to continue the
revocation hearing to allow his brother to testify. In evaluating a challenge to the
sufficiency of the evidence supporting a supervised release revocation, we view the
evidence in the light most favorable to the government and ask whether “any
rational trier of fact could have found the essential elements of a violation by a
preponderance of the evidence.” United States v. King, 608 F.3d 1122, 1129 (9th
Cir. 2010) (internal quotation marks omitted). The evidence adduced at the
hearing was more than sufficient to support the district court’s finding that Croft
had violated the conditions of his supervision by committing new crimes and
failing to report to scheduled drug testing. Moreover, the court did not abuse its
discretion in declining to continue the hearing, given the circumstances
surrounding the unavailability of Croft’s brother and the extent of the evidence
against Croft. See United States v. Rivera-Guerrero, 426 F.3d 1130, 1138-39 (9th
Cir. 2005). Accordingly, we affirm the district court’s revocation of Croft’s
supervised release.
Croft also argues that the district court procedurally erred in imposing the
consecutive 30-month sentences. The government concedes that the district court

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3 22-10119 & 22-10120
failed to calculate the applicable Guidelines range on the record, requiring remand.
Accordingly, we vacate Croft’s sentences and remand for resentencing. As the
government asserts, remand will provide the district court an opportunity to
reconsider the grade of Croft’s supervised release violations as part of its
calculation of the applicable Guidelines range. See United States v. Edling, 895
F.3d 1153, 1158 (9th Cir. 2018) (holding that robbery under Nevada law is not a
categorical crime of violence). Furthermore, the district court will have an
opportunity to consider the applicable statutory maximum, which the government
acknowledges is 24 months for each revocation sentence. The parties may raise
these issues, and any other appropriate arguments, on remand.
We decline Croft’s request for reassignment to a different district judge on
remand. The record does not support Croft’s allegations of bias and reassignment
is not in the interests of justice. See United States v. Wolf Child, 699 F.3d 1082,
1102 (9th Cir. 2012).
Croft’s motion for release pending appeal is denied as moot.
AFFIRMED in part; VACATED in part; and REMANDED for
resentencing.

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