USA V. DAVID SPOTTED EAGLE, No. 12-30094 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 19 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 12-30094 D.C. No. 4:11-cr-00087-SEH v. MEMORANDUM * DAVID LEE SPOTTED EAGLE, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Submitted November 13, 2012 ** Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges. David Lee Spotted Eagle appeals from the 57-month sentence imposed following his guilty-plea conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153(a) and 113(a)(6). We have jurisdiction under 28 * 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). U.S.C. § 1291, and we affirm. Spotted Eagle contends that the district court erred by applying a two-level vulnerable victim enhancement pursuant to U.S.S.G. § 3A1.1(b)(1). Specifically, he contends that there was insufficient evidence to support the court s finding that the victim was asleep. The court s finding is supported by the record and is not clearly erroneous. See United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007). To the extent Spotted Eagle contends that the district court procedurally erred by failing to explain why the enhancement was warranted, this contention fails. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). AFFIRMED. 2 12-30094