USA v. Timothy Butler, No. 09-30362 (9th Cir. 2010)

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FILED DEC 13 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-30362 D.C. No. 1:03-cr-00131-BLW v. MEMORANDUM * TIMOTHY JAMES BUTLER, Defendant - Appellant. Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding Submitted December 6, 2010 ** Before: GOODWIN, RYMER, and GRABER, Circuit Judges. Timothy James Butler appeals from the 160-month sentence imposed upon resentencing following a successful 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Butler contends that the district court procedurally erred by limiting its * 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). consideration of his post-sentence rehabilitation in order to avoid unwarranted sentencing disparities. The record reflects that the district court fully considered Butler s post-sentence rehabilitation, in conjunction with the remaining 18 U.S.C. § 3553(a) sentencing factors, when it granted a 21-month downward variance from the advisory Guidelines range. See United States v. Green, 152 F.3d 1202, 120708 (9th Cir. 1998) (per curiam). The district court did not procedurally err, and the sentence imposed is substantively reasonable in light of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). AFFIRMED. 2 09-30362

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