NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 18 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10029

Plaintiff-Appellee, D.C. No. 2:16-cr-01048-NVW

v.

MEMORANDUM*

OSCAR ANTONIO OLIVAS, Jr.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Oscar Antonio Olivas, Jr., appeals from the district court’s judgment and

challenges the 27-month sentence imposed following his guilty-plea conviction for

escape from custody, in violation of 18 U.S.C. §§ 751(a) and 4082(a). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

* 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). Olivas contends that the district court procedurally erred by failing to

explain his sentence adequately, in particular its decision to make the sentence

consecutive to his undischarged sentences. He further contends that insofar as the

district court relied on his drug use as a basis to reject his sentencing

recommendation, such reliance would constitute cruel and unusual punishment in

violation of the Eighth Amendment. The record shows that the district court

believed that a 27-month consecutive sentence was warranted, notwithstanding its

effect on the total length of Olivas’s incarceration. The district court addressed

Olivas’s mitigating arguments and did not err by failing to provide a fuller

explanation. See Rita v. United States, 551 U.S. 338, 358-59 (2007). Moreover,

the record shows that the district court appropriately considered Olivia’s drug use

when discussing his post-escape conduct and did not punish Olivas for relapsing.

Olivas also contends that the sentence is substantively unreasonable in light

of the nonviolent nature of his offenses and his history of drug addiction and

childhood trauma. The district court did not abuse its discretion. See Gall v.

United States, 552 U.S. 38, 51 (2007). The within-Guidelines sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and

the totality of the circumstances, including Olivas’s criminal history and failure to

surrender. See Gall, 552 U.S. at 51.

AFFIRMED.

2 18-10029