FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30007
Plaintiff - Appellee, D.C. No. 1:12-cr-00097-SPW
v.
MEMORANDUM*
GARY TED AMES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Gary Ted Ames appeals from the district court’s judgment and challenges
the 36-month sentence imposed following his jury-trial conviction for being a felon
in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).
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).
Ames contends that the district court erred by failing to provide notice under
Federal Rule of Criminal Procedure 32(h) of its intent to depart upwards. The
record does not support Ames’s contention that the district court applied an upward
departure under U.S.S.G. § 4A1.3(a)(1). Instead, the court imposed an upward
variance based on the 18 U.S.C. § 3553(a) factors; therefore, it was not required to
give notice under Rule 32(h). See Irizarry v. United States, 553 U.S. 708, 714-16
(2008).
Ames next contends that his above-Guidelines sentence is substantively
unreasonable. The district court did not abuse its discretion in imposing Ames’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Ames’s sentence, 12-
months above the top of the advisory Guidelines range, is substantively reasonable
in light of the totality of circumstances and the section 3553(a) sentencing factors,
including the need to deter and the nature and circumstances of the offense. See id.
AFFIRMED.
2 14-30007