United States v. Collin Baird

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                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 28 2014

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50044

               Plaintiff - Appellee,             D.C. No. 3:12-cr-00578-IEG-1

  v.
                                                 MEMORANDUM*
COLLIN MICHAEL BAIRD,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Irma E. Gonzalez, District Judge, Presiding

                           Submitted December 18, 2013**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Collin Michael Baird challenges the 78-month sentence imposed following

his guilty-plea conviction for receipt of images of minors engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). 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 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Baird contends that the district court procedurally erred by failing to address

his argument that the district court should exercise its discretion under Kimbrough

v. United States, 552 U.S. 85 (2007) to vary downward. Because Baird did not

object on these grounds in the district court, we review for plain error and Baird is

therefore required to show that there is an error that is plain and that affects

substantial rights because there is a reasonable probability that the sentence would

have been different absent the alleged error. See United States v. Dallman, 533

F.3d 755, 761-62 (9th Cir. 2008). Because the district court explained its reasons

for the downward variance and sentence and there is no indication that the district

court did not understand its authority to vary from the Guidelines range based on

Kimbrough, we hold that there is not plain error affecting substantial rights. See

Dallman, 533 F.3d at 761-62; cf. United States v. Henderson, 649 F.3d 955, 958.

964 (9th Cir. 2011) (remanding to the district court because the district court made

comments suggesting that it believed that it did not have the discretion under

Kimbrough to reject the child pornography Guidelines).

      AFFIRMED.




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