United States v. Brian Robinson ( 2012 )

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NOT FOR PUBLICATION MAY 21 2012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