United States v. Brunfman
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 30, 2026
Docket25-1343
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 30 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 25-1343
D.C. No.
Plaintiff - Appellee, 2:23-cr-00185-MCS-1
v.
MEMORANDUM*
KIMBER BRUNFMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted October 27, 2026**
Before: SILVERMAN, FORREST, and VANDYKE, Circuit Judges.
Kimber Brunfman appeals from the district court’s judgment and challenges
the 240-month sentence and several conditions of supervised release imposed upon
his guilty-plea conviction for possession with intent to distribute fentanyl in
violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291,
*
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).
and we affirm in part, vacate in part, and remand.
Brunfman contends the district court procedurally erred by (1) relying on
clearly erroneous facts; (2) failing to consider his mitigating arguments and the 18
U.S.C. § 3553(a) factors; and (3) failing to explain adequately the upward variance
from the Guidelines range. Because Brunfman did not raise these claims in the
district court, we review for plain error. See United States v. Valencia-Barragan,
608 F.3d 1103, 1108 (9th Cir. 2010). The district court did not plainly err. The
court relied on uncontested facts contained in the presentence report and
reasonable inferences from those facts. See United States v. Ameline, 409 F.3d
1073, 1085 (9th Cir. 2005) (en banc) (“[T]he district court may rely on undisputed
statements in the PSR at sentencing.”). Moreover, it considered Brunfman’s
arguments and the § 3553(a) factors and sufficiently explained its reasons for the
upward variance, including Brunfman’s awareness of the danger of the drugs he
sold. See United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).
Brunfman also contends the above-Guideline sentence is substantively
unreasonable because the district court overemphasized Brunfman’s prior drug
experiences, Brunfman’s suspicion that the drugs he provided the victim contained
fentanyl, and Brunfman’s possession of fentanyl at the time of his arrest. However,
“[t]he weight to be given the various factors in a particular case is for the discretion
of the district court.” United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th
2 25-1343
Cir. 2009). The district court did not abuse its discretion in imposing the above-
Guidelines sentence, which is substantively reasonable under the § 3553(a) factors
and the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51
(2007).
Lastly, Brunfman contends and the government concedes that the district
court erred by failing to pronounce orally each discretionary condition of
supervised release. We agree. We therefore vacate special supervised release
conditions six through eleven in the written judgment, and remand for the limited
purpose of permitting the court to pronounce orally any conditions it wishes to
reimpose and give Brunfman an opportunity to object. See United States v.
Montoya, 82 F.4th 640, 656 (9th Cir. 2023) (en banc).
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
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