NOT FOR PUBLICATION

 

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MARK ACHIN, 

Defendant-Appellant.

No. 18-50077

D.C. No. 

3:15-cr-00307-BEN-1

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted January 11, 2019

Pasadena, California

Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District 

Judge.

Mark Achin appeals the revocation of his supervised release and imposition 

of additional custody with subsequent supervision. We have jurisdiction pursuant 

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We strike Standard Condition 4 from 

the judgment but otherwise affirm the district court’s sentence.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Eduardo C. Robreno, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation.

FILED

JAN 22 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Because Achin failed to raise his arguments before the district court, plain 

error review applies. United States v. Valencia-Barragan, 608 F.3d 1103, 1108 

(9th Cir. 2010).

First, Achin contends that the district court violated his due process rights by 

failing to provide him with a specific opportunity to be heard on whether 

modification or extension (rather than revocation) of supervised release was 

warranted and by failing to consider independently all three options. 

The record indicates that after announcing its tentative sentence, the district 

court gave Achin and his counsel the opportunity to challenge the sentence, present 

mitigating evidence, and persuade the court to impose a different sentence. Both 

Achin and his counsel took this opportunity and argued for modification of 

supervised release rather than revocation. Moreover, given that (1) the revocation 

petition provided that the district court could modify, extend, or revoke supervised 

release, and (2) Achin and his counsel both argued for modification, it is clear that 

the court understood that it could continue Achin on supervision, but instead 

elected to revoke supervised release. As a result, we conclude that the district court 

did not plainly err and, instead, provided Achin with all of the due process required 

by Morrissey v. Brewer, 408 U.S. 471 (1972). 

Second, Achin contends that, in setting his custodial sentence, the district 

court plainly erred by impermissibly considering: (1) rehabilitation as a basis for 
3

elevating the custodial sentence;

1

and (2) the need to punish the underlying offense

or to promote respect for the law.2 Additionally, Achin asserts that the district court 

erred in failing to explain the increase to an eighteen-month custodial sentence 

from the Guidelines recommendation of four to ten months. See United States v. 

Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

The record shows that the district court sentenced Achin to eighteen months

of incarceration based on its legitimate desire to deter repeat violations of 

supervised release and to punish the current violations. Although the district court 

announced the prison sentence immediately after discussing Achin’s drug abuse, it 

is apparent from the hearing transcript that the court’s concerns regarding 

substance abuse treatment were targeted at the term of supervised release rather 

than the term of incarceration. There is no suggestion in the record that the district 

court extended Achin’s custodial sentence to accommodate rehabilitation.

Similarly, the record does not suggest that the district court was attempting to

punish Achin for any underlying violations of the law rather than for his immediate 

and flagrant violations of the terms of his supervised release. 

Contrary to Achin’s argument, the district court provided reasons for varying 

upwards from the custodial sentence recommended by the Guidelines, including 

 

1 See Tapia v. United States, 564 U.S. 319, 332 (2011).

2 See United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006).
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that: (1) the prior identical term did not deter Achin; (2) Achin repeatedly flouted 

the court’s rules and breached its trust; and (3) Achin was cavalier to the 

obligations the court imposed to address substance abuse. An adequate explanation 

for a sentence “may also be inferred from the PSR or the record as a whole.” Id.

Here, the revocation petition contains an additional reason for the upward variance: 

quoting Sentencing Guideline § 7Bl.4, Application Note 4, the revocation petition 

provides that because “the original sentence was the result of a downward 

departure . . . an upward departure may be warranted.” These reasons are sufficient

to permit judicial review. Id.; see also 18 U.S.C. § 3553(c). Because the district 

court provided adequate explanation for Achin’s custodial sentence, we conclude 

that it did not commit plain error.

Third, Achin argues that in setting his period of supervised release, the 

district court plainly erred by varying upwards to five years from the Guidelines 

recommendation of three years without calculating or stating the Guidelines 

recommendation on the record or explaining the need for the increase. We 

acknowledge that the district court did not mention what Achin contends is the 

Guidelines recommendation for the length of supervision,

3 nor did it explicitly 

explain why five years, rather than three, was appropriate. Ideally, the district court 

 

3 At the sentencing hearing, the district court stated only that the maximum 

term of supervised release was life. The original pre-sentence investigation report 

appears to be the only relevant document providing that the Guidelines 

recommendation is three years. 
5

should have clearly documented its reasons for the variance on the record. United 

States v. Hammons, 558 F.3d 1100, 1104 (9th Cir. 2009). However, unlike in 

Hammons, a reading of the sentencing hearing transcript, and the record as a 

whole, provides sufficient explanation for the court’s decision to increase the term 

of supervised release such that the decision is reviewable. Carty, 520 F.3d at 992. 

The record indicates that the district court considered, for example: (1) Achin’s 

history of recidivism; (2) his inability to control his substance abuse; (3) his 

exceptionally poor adjustment to supervision (including immediately violating the 

terms upon release); and (4) the fact that the previous sentence imposed (which 

included three years of supervised release) was ineffective. The record also 

indicates that the district court considered but rejected a three-year term of 

supervised release as that was the recommendation espoused by the probation 

officer. Lastly, the district court explained that it would consider reducing the term 

of supervised release if Achin performed well, providing Achin with an incentive 

for compliance. This statement illuminates an additional reason why the court 

concluded that the increased supervision period was warranted. Given the 

sufficiency of reasons supporting the district court’s imposition of five years of 

supervised release, we conclude that the district court did not commit plain error.

Finally, both parties agree that Standard Condition 4 in the judgment, that 

Achin support his dependents and meet other family responsibilities, should be 
6

stricken. We agree. Achin has no dependents, and the phrase “other family 

responsibilities” has been found to be unconstitutionally vague and was 

subsequently removed from the Sentencing Guidelines. United States v. Evans, 883 

F.3d 1154, 1162-63 (9th Cir. 2018). Therefore, we strike Standard Condition 4 

from the judgment. 

Standard Condition 4 is STRICKEN from the judgment, and as 

modified, the judgment is AFFIRMED.