United States v. Oberholtzer

SUPPLEMENTAL MEMORANDUM ^**

That facts and procedure are known to the parties and we do not repeat them here. Robert Oberholtzer raised several challenges to his conviction and sentence. We previously ruled on all but one of these challenges. See United States v. Oberholtzer, 221 Fed.Appx. 542 (9th Cir.2007). We deferred ruling on Oberholtzer’s sentencing challenge pending resolution of Claiborne v. United States, — U.S.-, 127 S.Ct. 2245, 167 L.Ed.2d 1080 (2007) (mem.), and Rita v. United States, — U.S.-, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). For the reasons set forth below, we now affirm.

This court will only set aside a sentence when it is procedurally erroneous or substantively unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Oberholtzer argues that the district court erroneously treated the Guidelines as mandatory instead of advisory. See Carty, 520 F.3d at 993. We disagree. At the re-sentencing hearing, the district court initially stated: “Am I going to follow [the Guidelines], or are there circumstance that are so extraordinary as to require the mitigation of the offense?” Had this been all the court said, we would be forced to remand. See Gall v. United, States, — U.S. -, 128 S.Ct. 586, 595, 169 L.Ed.2d 445 (2007). However, defense counsel pointed out that the district court did not need to find “something extraordinary to sentence outside the guideline range,” and the court agreed. The court responded: “I think you may well be right. I still have to find that the circumstances are sufficiently mitigating to cause me to change the sentence.” Thus, “[t]o the extent the sentencing judge’s initial characterization was inopportune, we cannot say that it was procedural error because the court corrected itself.” Carty, 520 F.3d at 994. Here, “the judge treated the Guidelines range as a baseline, and moved from there to tailor a sentence to the individualized offense and offender characteristics of [the defendant’s] case.” Id.

Accordingly, we AFFIRM the district court’s sentence.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.