FILED
NOT FOR PUBLICATION JAN 26 2010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. 09-10094
Plaintiff - Appellee, D.C. No. 1:08-cr-00065-LJO
v.
MEMORANDUM *
EDWARD MARKHAM,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Edward Markham appeals from the 120-month sentence imposed following
his jury-trial conviction for being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
*
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).
AK/Research
affirm.
Markham contends that his sentence is unreasonable because the district
court imposed an upward variance to the advisory Guidelines range, sentencing
him to the statutory maximum of 120 months. The district court’s reasons for
imposing the sentence, which included Markham’s extensive and violent criminal
history, the need for deterrence, for just punishment, to promote respect for the
law, and the need to protect the public, are sufficiently compelling justifications to
support the degree of the variance. The sentence is substantively reasonable under
the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52
(2007); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc).
Markham also contends that the district court’s sentence violated his right to
due process because it was based on dismissed charges or charges that could not be
sufficiently sustained with reports. This contention also fails as the record
indicates that the district court properly considered this information as part of its
overall analysis under 18 U.S.C. § 3553(a).
AFFIRMED.
AK/Research 2 09-10094