FILED
NOT FOR PUBLICATION DEC 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50247
Plaintiff - Appellee, D.C. No. CR 11-137-DOC
v.
MEMORANDUM*
TIMOTHY MURPHY,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted November 21, 2014
Pasadena, California
Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**
Timothy Murphy appeals from the district court’s judgment and challenges
his 97-month sentence for mail fraud in violation of 18 U.S.C. § 1341. We affirm.
Murphy first contends that the district court erred at sentencing by applying
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
the four-level enhancement for a securities law violation committed by an
investment adviser without explicitly identifying the particular securities law that
gave rise to its application. U.S.S.G. § 2B1.1(b)(18)(B)(iii) (current version at
U.S.S.G. § 2B1.1(b)(19)(A)(iii)). We review the issue for plain error because
Murphy did not raise this basis for objection at the district court and thereby failed
to put the district court on notice of the issue. See United States v. Charles, 581
F.3d 927, 933 (9th Cir. 2009). Because the evidence demonstrates that Murphy
violated a securities law, there is no reasonable probability that he would have
received a different sentence. Accordingly, there is no plain error. See United
States v. Sanders, 421 F.3d 1044, 1051 (9th Cir. 2005).
Murphy next contends that the district court procedurally erred at sentencing
by failing to appreciate its discretion under Kimbrough v. United States, 552 U.S.
85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) to deviate from the Sentencing
Guidelines based on policy differences with the Guidelines. Because Murphy
raises this issue for the first time on appeal, we again review for plain error,
Sanders, 421 F.3d at 1050, and we find none. At sentencing, the district court
explicitly recognized the advisory nature of the Guidelines and made policy
judgments about sentencing under the fraud guideline. The district court is not
required to vary from the Guidelines on policy grounds if it does not agree that a
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variance is warranted. United States v. Henderson, 649 F.3d 955, 964 (9th Cir.
2011).
Finally, Murphy contends that his sentence is substantively unreasonable
because the fraud guideline is fundamentally flawed and Murphy poses a
particularly low risk of recidivism. Murphy also contends that various mitigating
factors warrant a lower sentence. None of these arguments amount to an abuse of
discretion by the district court. See United States v. Edwards, 595 F.3d 1004,
1014–15 (9th Cir. 2010). The district court engaged in extensive consideration of
the factors under 18 U.S.C. § 3553(a), including the particular factors that Murphy
addresses on appeal. Because “the record as a whole reflects rational and
meaningful consideration of the [§ 3553(a)] factors,” the 97-month sentence was
substantively reasonable. See United States v. Ressam, 679 F.3d 1069, 1087 (9th
Cir. 2012) (en banc).
AFFIRMED.
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