United States v. Brian Robinson

FILED
NOT FOR PUBLICATION MAY 21 2012

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. 10-50349

Plaintiff - Appellee, D.C. No. 2:09-cr-00212-SJO

v.
MEMORANDUM *
BRIAN KEITH ROBINSON,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding

Submitted May 15, 2012 **

Before: CANBY, GRABER, and M. SMITH, Circuit Judges.

Brian Keith Robinson appeals from the 200-month sentence imposed

following his guilty-plea conviction for bank robbery, in violation of 18 U.S.C.

§ 2113(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 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).
 Robinson contends that the district court plainly erred by varying upward

from the advisory Sentencing Guidelines range without providing him adequate

notice under Federal Rule of Criminal Procedure 32(h) and Irizarry v. United

States, 553 U.S. 708 (2008). This contention fails because the notice requirement

of Rule 32(h) does not apply to variances, see United States v. Cruz-Perez, 567

F.3d 1142, 1146 (9th Cir. 2009), and the record belies Robinson’s contention that

he did not have adequate notice of the facts on which the court based his sentence.

Robinson also contends that the district court procedurally erred by failing to

consider adequately his cognitive and emotional problems as mitigating factors.

The record belies this contention.

The record also belies Robinson’s contention that the district court gave too

much weight to his criminal history in imposing his sentence. The sentence

imposed, though above the Guidelines range, is reasonable in light of the totality of

the circumstances and the 18 U.S.C. § 3553(a) sentencing factors. See Gall v.

United States, 552 U.S. 38, 51 (2007).

Robinson’s unopposed request to file a late reply brief is granted. The reply

brief is deemed filed.

AFFIRMED.

2 10-50349