USA v. Ronald Smith, No. 09-30357 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 08 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-30357 D.C. No. 1:04-cr-00087-RFC-5 v. MEMORANDUM * RONALD E. SMITH, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Richard F. Cebull, Chief District Judge, Presiding Submitted October 6, 2010 ** Seattle, Washington Before: KOZINSKI, Chief Judge, THOMAS and M. SMITH, Circuit Judges. The district court considered the correct guideline range and adequately explained its decision to impose a stricter sentence. Federal Rule of Criminal Procedure 32(h) does not apply to the variance. Irizarry v. United States, 553 U.S. * 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). page 2 708, 714 (2008). Even if it did, the government s re-sentencing memorandum gave the defendant adequate notice of the grounds for lengthening his sentence. See Fed. R. Crim. P. 32(h); cf. United States v. Cruz-Perez, 567 F.3d 1142, 1147 (9th Cir. 2009). AFFIRMED.

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