NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         MAY 1 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50303

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00385-ODW-1
 v.

TOMMIE THOMPSON,                                MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                    Argued and Submitted December 13, 2019
                             Pasadena, California

Before: KELLY,** PAEZ, and BADE, Circuit Judges.

      Defendant-Appellant Tommie Thompson appeals from a judgment finding

that he violated conditions of his supervised release, ordering that his supervised

release be revoked, and sentencing him to 13 months of imprisonment to be




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
followed by supervised release for an additional term of 60 months. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

      In 1999, Mr. Thompson was convicted of possessing, and conspiracy to

possess, cocaine base, heroin, and marijuana with intent to distribute. He was

sentenced to 292 months’ imprisonment followed by a five-year term of supervised

release. The term of imprisonment was later reduced to 235 months and again to

188 months. Mr. Thompson completed his sentence of imprisonment and began

supervised release in 2015.

      The probation office filed a petition alleging that Mr. Thompson had

violated the terms of his supervised release by failing to report an arrest by law

enforcement to his probation officer.1 Officers of the Los Angeles Police

Department (LAPD) arrested Mr. Thompson at an illegal marijuana dispensary on

suspicion that he was a felon in possession of a firearm. A shooting had occurred

outside the dispensary and the suspected shooter fled into the facility. Security

footage captured Mr. Thompson removing what appeared to be a firearm from the

waistband of his pants and handing it to another individual. Mr. Thompson did

not report his arrest to his probation officer. He also did not volunteer any




1
  The petition also alleged that Mr. Thompson knowingly associated with a felon.
The district court found the evidence on this point lacking and that finding is not at
issue in this appeal.

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information about the arrest when his probation officer called to inquire. In fact,

Mr. Thompson initially denied any arrests or pending charges when asked.

      Mr. Thompson denied the allegations in the petition and the district court

held an evidentiary hearing. The court heard evidence that Mr. Thompson suffers

from various mental health issues, has memory problems, and struggles to read.

The court also viewed surveillance video of the incident that led to Mr.

Thompson’s arrest. The district court ultimately found that Mr. Thompson was

aware he had been arrested, had failed to report the arrest as required by his

supervised release conditions, and had possessed a firearm. The court revoked Mr.

Thompson’s supervised release and sentenced him to 13 months’ imprisonment

and a new term of 60 months of supervised release. On appeal, Mr. Thompson

challenges the sufficiency of the evidence in various respects, the district court’s

revocation decision, and the procedural and substantive reasonableness of the

sentence.

      We review a district court’s decision to revoke a term of supervised release

for abuse of discretion. United States v. Perez, 

, 547 (9th Cir. 2008).

On a sufficiency challenge, we ask whether any rational trier of fact could have

found the elements of a violation of a condition of supervised release by a

preponderance of the evidence. United States v. King, 

, 1129 (9th

Cir. 2010). A sentence imposed upon revocation is reviewed for reasonableness


                                          3                                      18-50303
pursuant to United States v. Booker, 

(2005). United States v.

Hammons, 

, 1103 (9th Cir. 2009).

      The evidence was sufficient to establish that Mr. Thompson was given

notice of the reporting condition. Written notice of such conditions is required by

18 U.S.C. § 3583(f). Failure to provide written notice of conditions will not

automatically invalidate a revocation of release if the defendant had actual notice

of the condition violated. United States v. Ortega-Brito, 

, 1138 (9th

Cir. 2002). As Mr. Thompson notes, his original judgment of sentencing included

notice of this condition. Mr. Thompson’s probation officer testified that the officer

who preceded him gave Mr. Thompson information about his conditions in 2015.

The written notice alone would be sufficient.

      The evidence was sufficient to establish that Mr. Thompson knowingly

violated the reporting condition.2 The government presented testimony from an

LAPD officer that Mr. Thompson had been arrested, booked at a jail facility, and

fingerprinted. He spent the night in jail and posted bail in order to be released.


2
  The parties dispute whether the government was required to prove willfulness or
knowledge. Where a release condition is silent as to what mens rea is required for
violation, this court generally presumes that knowledge is the standard. See United
States v. Phillips, 

, 768 (9th Cir. 2012); United States v. Napulou, 

, 1045 (9th Cir. 2010); United States v. Vega, 

, 750 (9th Cir.
2008). Mr. Thompson’s reliance on United States v. Jeremiah, 

(9th
Cir. 2007), is misplaced. In that case, the court was reviewing a finding of
willfulness already made by the district court for error.

It does not
stand for the proposition that willfulness is the required standard in other cases.

                                          4                                     18-50303
Mr. Thompson then failed to report these extensive law enforcement contacts to his

probation officer and further declined to report them when the officer contacted

him to inquire if he had anything he needed to disclose.

      The district court did not err by finding that Mr. Thompson possessed a

firearm under 18 U.S.C. § 3583(g)(2). An LAPD officer identified the weapon Mr.

Thompson handled in the footage as a semi-automatic firearm. The same officer

testified that LAPD personnel responded to a report of a shooting at the location.

The court viewed the video and concluded that Mr. Thompson possessed a firearm.

Mr. Thompson’s counsel speculated “So on the video, it could be replicas,” but no

evidence suggests that the object in the footage was a toy, replica, or antique

firearm excluded under 18 U.S.C. § 921(a)(3).3 In these circumstances, the judge

reasonably found by a preponderance of the evidence that Mr. Thompson

possessed a firearm.

      Mr. Thompson’s sentence was not procedurally unreasonable. A district

court must state its reasons for imposing a particular sentence. 18 U.S.C.

§ 3553(c). The law does not require “an elaborate explanation” of the reasons for

its sentence. United States v. Emmett, 

, 821–22 (9th Cir. 2014).

Within-Guidelines sentences “often need[] little explanation.” United States v.


3
 This exemption from the statutory definition of firearm is an affirmative defense
for which the defendant bears the burden of proof. United States v. Benamor, 

, 1186–87 (9th Cir. 2019), cert. denied, 

(2020).

                                          5                                       18-50303
Vasquez-Perez, 

, 900 (9th Cir. 2014). Where a defendant fails “to

object on the ground that the district court erred procedurally in explaining and

applying the [18 U.S.C.] § 3553(a) factors, we review only for plain error.” United

States v. Valencia-Barragan, 

, 1108 (9th Cir. 2010) (citing United

States v. Sylvester Normal Knows His Gun, III, 

, 918 (9th Cir. 2010));

accord United States v. Miqbel, 

, 1176 (9th Cir. 2006). Mr.

Thompson did not object.

      The district court did not commit plain error. The court announced the

applicable Guidelines range. It then discussed applicable policy statements

contained in the Guidelines. It considered the recommendations of the probation

officer. The court then imposed a within-Guidelines sentence that it felt was

“sufficient but not greater than necessary to comply with the purposes set forth in

[18 U.S.C.] § 3553(a).” This brief explanation does not constitute error, plain or

otherwise.

      Similarly, the district court did not err in rejecting Mr. Thompson’s

arguments for mitigation. “[W]hen a party raises a specific, nonfrivolous argument

tethered to a relevant [18 U.S.C.] § 3553(a) factor in support of a requested

sentence, then the judge should normally explain why he accepts or rejects the

party’s position.” United States v. Carty, 

, 992–93 (9th Cir. 2008) (en

banc) (citing Rita v. United States, 

, 356 (2007)). The district rejected


                                          6                                     18-50303
Mr. Thompson’s mitigation arguments given his extensive criminal history. Mr.

Thompson generally stated that his mental health and memory problems should

mitigate his sentence, an argument he subsequently undercut by opposing a

condition requiring that he take his medications.

      Mr. Thompson argues that the district court improperly considered

punishment as a factor when deciding the sentence. Punishment is excluded as a

permissible factor for district courts to consider on revocation of supervised

release. 18 U.S.C. § 3583(e). The district court’s comments about Mr.

Thompson’s criminal history were made in the context of his argument that he did

not understand that he had been arrested and that he deserved leniency because of

good behavior. Criminal history was relevant to these arguments. The exchanges

highlighted by Mr. Thompson do not show that the district court improperly

considered punishment as a factor in the sentence imposed.

      Mr. Thompson argues that the judge repeatedly referenced his placement in

Criminal History Category V, which he urged overstated his criminal record. He

contends that the court failed to recognize his argument that the Category V

designation on his underlying conviction was not correct because it was based on

several juvenile adjudications that should have been excluded from the calculation.

The district court, however, properly used the criminal history category that




                                          7                                      18-50303
applied at the time Mr. Thompson was originally sentenced to supervised release.

See U.S.S.G. § 7B1.4, cmt. n.1.

      Mr. Thompson claims his sentence was substantively unreasonable. This

court does not presume that a within-Guidelines sentence is reasonable. 

. However, we do recognize that “a correctly calculated Guidelines

sentence will normally not be found unreasonable on appeal.”

to the district judge is generally appropriate. See Gall v. United States,

, 51–52 (2007).

      The district court did not abuse its discretion by imposing a sentence of 13

months’ imprisonment and five additional years of supervised release. This

sentence was within the Guidelines range and in accord with the probation office’s

recommendations. In addition to the conduct already described, Mr. Thompson

cursed at his probation officer at his sentencing hearing and then claimed that it

was “not [his] fault” when confronted by the district court. Mr. Thompson

breached the court’s trust and a sentence at the high end of the Guidelines range

was not unreasonable.

      Mr. Thompson also contends that the court failed to address his argument for

mitigation because he “served four years longer in custody for the underlying

offense, even though his sentence had been reduced under the changes to the crack




                                          8                                    18-50303
cocaine sentencing laws.” A fair reading of the sentencing transcript indicates that

the court considered this argument for mitigation but ultimately rejected it.

      AFFIRMED.




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