United States v. Byron Miller

FILED NOT FOR PUBLICATION DEC 14 2009 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 09-30091 Plaintiff - Appellee, D.C. No. 1:03-CR-00077-RFC v. MEMORANDUM * BYRON WAYNE MILLER, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Richard F. Cebull, Chief District Judge, Presiding Submitted November 17, 2009 ** Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges. Byron Wayne Miller appeals from the 270-month sentence imposed upon resentencing following a successful 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 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 finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). AK/Research Miller contends that the sentence imposed is unreasonable because the district court did not consider, weigh, and give effect to his substantial post- sentencing rehabilitation in fashioning the sentence. The record reflects that the district court did not procedurally err, and that the sentence is reasonable. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007); see also United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc). AFFIRMED. AK/Research 2 09-30091