NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50142

Plaintiff-Appellee, D.C. No. 2:03-cr-00223-PA-1

v.

MEMORANDUM*

ALFONZO DARNELL TOLBERT, AKA

Al, AKA Alan Blaylock, AKA Alvin Blaylock, AKA Alvin “Al” Blaylock, AKA Lilal, AKA Alfonso Darnell Tolbert, AKA Alfonzo Tolbert, AKA Alfonzo Daniel Tolbert, AKA Alfonzo Darnel Tolbert, AKA Alonzo Darnell Tolbert, AKA Willywest,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted January 8, 2020**

Before: CALLAHAN, NGUYEN, and HURWITZ, Circuit Judges.

Alfonzo Darnell Tolbert appeals from the district court’s judgment and

* 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). challenges the 15-month sentence imposed on remand for resentencing following

the revocation of his supervised release. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

Tolbert contends the district court procedurally erred by failing to calculate

the correct Guidelines range and use it as the starting point for the sentence. The

district court did not plainly err. See United States v. Valencia-Barragan, 608 F.3d

1103, 1108 (9th Cir. 2010). The record reflects that the court was aware of the

undisputed Guidelines range and used that range as the benchmark from which it

varied upward. See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en

banc). Tolbert has failed to show a reasonable probability that he would have

received a different sentence had the court expressly calculated the Guidelines

range. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).

Tolbert also contends that the district court impermissibly imposed the

sentence in order to promote his rehabilitation. The district court did not plainly

err, see United States v. Grant, 664 F.3d 276, 279 (9th Cir. 2011), because the

record does not suggest that the court imposed or lengthened the sentence to

promote rehabilitation. See Tapia v. United States 564 U.S. 319, 334 (2011)

(district court does not run afoul of 18 U.S.C. § 3582(a) by “discussing the

opportunities for rehabilitation within prison”).

AFFIRMED.

2 19-50142