NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50435
Plaintiff-Appellee, D.C. No. 2:17-cr-00414-SVW
v.
MEMORANDUM*
AARON MCQUEEN, a.k.a. Michael Tyler,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Aaron McQueen appeals from the district court’s judgment and challenges
the 120-month sentence imposed following his guilty-plea conviction for bank
robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113(a), 2(a). 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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
McQueen contends that the district court erred procedurally on several
grounds. We review for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none. The district court
was not required to give advance notice of its intent to impose an upward variance.
See United States v. Vanderwerfhorst, 576 F.3d 929, 934-35 (9th Cir. 2009).
Moreover, the district court did not plainly err by failing to invite argument
specifically from the government under the circumstances of this case. See United
States v. Waknine, 543 F.3d 546, 553-54 (9th Cir. 2008). And the record shows
that any factual error by the court with respect to the date of McQueen’s release
from his previous prison term does not constitute plain error because it did not
affect the sentence imposed. See Vanderwerfhorst, 576 F.3d at 937. Finally, the
district court’s explanation for the sentence, which touched on several of the 18
U.S.C. § 3553(a) sentencing factors, was adequate. See United States v. Carty, 520
F.3d 984, 992 (9th Cir. 2008) (en banc).
McQueen also contends that his above-Guidelines sentence is substantively
unreasonable because a within-Guidelines sentence would have been sufficient to
satisfy the goals of sentencing. The district court did not abuse its discretion. See
Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively
reasonable in light of the section 3553(a) sentencing factors and the totality of the
circumstances, including McQueen’s dangerous flight from police pursuit and his
2 17-50435
prior robbery and assault convictions. See Gall, 552 U.S. at 51. Furthermore, a
district court may vary upward based on factors already incorporated into the
Guidelines calculations. See United States v. Christensen, 732 F.3d 1094, 1101
(9th Cir. 2013).
AFFIRMED.
3 17-50435