FILED
NOT FOR PUBLICATION JAN 11 2010
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. 08-30374
Plaintiff - Appellee, D.C. No. 4:08-CR-00062-SEH
v.
MEMORANDUM *
ROBERT LEE WELCH,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Robert Lee Welch appeals from the 72-month sentence imposed following
his guilty-plea conviction for assault resulting in serious bodily injury, in violation
*
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).
NC/Research
of 18 U.S.C. §§ 1153(a) and 113(a)(6). We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
Welch contends that the district court procedurally erred when it relied on
facts unsupported by the record at sentencing. We review for this contention for
plain error, and find none. See United States v. Dallman, 533 F.3d 755, 760-61
(9th Cir. 2008); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)
(en banc) (“It would be procedural error for a district court...to choose a sentence
based on clearly erroneous facts”). Moreover, Welch has not shown that any error
affected his substantial rights. See Dallman, 533 F.3d at 762. Welch also contends
that the district court, without notice, erroneously relied upon Welch’s “lack of
compassion” for his actions without considering his acceptance of responsibility.
This contention is unsupported by the record and is without merit. See United
States v. Orlando, 553 F.3d 1235, 1237-38 (9th Cir. 2009) (rejecting defendant’s
argument that additional notice was required for an upward variance where the
factual basis for it was not a surprise).
Finally, Welch contends that the sentence above the guidelines range is
substantively unreasonable under the factors set forth in 18 U.S.C. § 3553(a). In
NC/Research 2 08-30374
light of the totality of the circumstances, the 72-month sentence is not
substantively unreasonable. See id. at 1238-39; Carty, 520 F.3d at 993.
AFFIRMED.
NC/Research 3 08-30374