United States v. David Derryberry

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-30006 Plaintiff-Appellee, D.C. No. 9:11-cr-00015-DWM-2 v. MEMORANDUM* DAVID DERRYBERRY, Defendant-Appellant. Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding Submitted June 26, 2023** Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges. David Derryberry appeals from the district court’s judgment and challenges the 12-month sentence imposed upon the fifth revocation of his supervised release. We have jurisdiction under 28 U.S.C § 1291, and we affirm. Derryberry contends that his sentence is substantively unreasonable because * 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). he was struggling with addiction. He also argues that the district judge may have relied upon the impermissible factor of “just punishment” when imposing a custodial sentence four months longer than the one recommended by the magistrate judge. The district judge, however, expressly noted that just punishment is an improper sentencing consideration on revocation, see 18 U.S.C. § 3583(e); United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006), and clarified that he was not relying on that factor. Although the magistrate judge recommended an 8- month term of imprisonment followed by 18 months of supervised release, the record supports the district judge’s conclusion that a lengthier custodial term and termination of any further supervision was appropriate. The within-Guidelines sentence is substantively reasonable under the totality of the circumstances and the 18 U.S.C. § 3583(e) factors, including Derryberry’s repeated breaches of the court’s trust and the risk he poses to the community. See Gall v. United States, 552 U.S. 38, 51 (2007); Miqbel, 444 F.3d at 1182. AFFIRMED. 2 23-30006