United States v. Brian Robinson

473 F. App'x 618

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2012
• Docket: 10-50349
• Status: Unpublished

Opinion

MEMORANDUM **

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.

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, 128 S.Ct. 2198, 171 L.Ed.2d 28 (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, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Robinson’s unopposed request to file a late reply brief is granted. The reply brief is deemed filed.

AFFIRMED.

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