United States v. McGowan

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-2921 D.C. No. 6:19-cr-00563-MC-1 Plaintiff - Appellee, v. MEMORANDUM* BRYCE WILLIAM McGOWAN, Defendant - Appellant. Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding Submitted April 22, 2024** Before: CALLAHAN, LEE, and FORREST, Circuit Judges. Bryce William McGowan appeals from the district court’s judgment and challenges the 9-month sentence imposed upon the revocation of his supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. McGowan contends that the district court failed to consider his need for * 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). substance abuse treatment and did not justify its decision to impose imprisonment instead of residential treatment. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude there is none. The record makes clear that the court considered McGowan’s background and rehabilitative needs, and determined that a carceral term was warranted in light of McGowan’s poor history on supervision. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). The court selected the sentence to sanction McGowan’s breach of the court’s trust and not, as McGowan contends, to punish him. See United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007). McGowan also contends that his sentence is substantively unreasonable because it fails to give sufficient weight to his recent rehabilitative efforts and need for continued treatment, improperly punishes him for his behavior during the revocation proceedings, and because his violations were technical. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The record belies McGowan’s assertion that his behavior before the court influenced the sentence. The 9-month sentence, imposed after the district court had twice continued proceedings to allow McGowan time to come into compliance, is substantively reasonable under the totality of the circumstances. See 18 U.S.C. § 3583(e); Gall, 552 U.S. at 51. AFFIRMED. 2 23-2921