United States v. Festa

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-6130 D.C. No. Plaintiff - Appellee, 3:15-cr-01194-JLS-1 v. MEMORANDUM* ROBERT ALLEN FESTA, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Submitted November 12, 2025** Before: SCHROEDER, RAWLINSON, and NGUYEN, Circuit Judges. Robert Allen Festa appeals from the district court’s judgment and challenges the 24-month sentence imposed upon the fifth revocation of his supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Festa contends the district court procedurally erred by not addressing his * 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). mitigating arguments regarding his low intellectual functioning and autism before it imposed a sentence three times above the high end of the Guidelines range. We need not resolve the parties’ dispute as to the applicable standard of review because Festa’s claim fails under any standard. The district judge, who had sentenced Festa on the underlying offense and his four prior revocations, heard extensive argument regarding Festa’s social and intellectual limitations and how those limitations affected his ability to comply with the terms of his supervision. The judge nevertheless determined that an above-Guidelines sentence was warranted, citing “the aggravated nature of [Festa’s] continuing and ongoing violations,” his breach of the court’s trust, the danger he poses to the public, and his threats to his treatment provider. The judge also explained that Festa knows “right from wrong,” and understood that he was making threats. This record reflects that the court considered Festa’s arguments but was not persuaded that they outweighed the factors supporting an upward variance. The court adequately considered Festa’s arguments and provided sufficient explanation for the above-Guidelines sentence. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). AFFIRMED. 2 24-6130