                                                                              FILED
                             NOT FOR PUBLICATION                               JAN 11 2010

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                         No. 08-30374

               Plaintiff - Appellee,               D.C. No. 4:08-CR-00062-SEH

   v.
                                                   MEMORANDUM *
 ROBERT LEE WELCH,

               Defendant - Appellant.



                     Appeal from the United States District Court
                             for the District of Montana
                      Sam E. Haddon, District Judge, Presiding

                            Submitted December 15, 2009 **


Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Robert Lee Welch appeals from the 72-month sentence imposed following

his guilty-plea conviction for assault resulting in serious bodily injury, in violation



          *
             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).

NC/Research
of 18 U.S.C. §§ 1153(a) and 113(a)(6). We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

       Welch contends that the district court procedurally erred when it relied on

facts unsupported by the record at sentencing. We review for this contention for

plain error, and find none. See United States v. Dallman, 533 F.3d 755, 760-61

(9th Cir. 2008); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)

(en banc) (“It would be procedural error for a district court...to choose a sentence

based on clearly erroneous facts”). Moreover, Welch has not shown that any error

affected his substantial rights. See Dallman, 533 F.3d at 762. Welch also contends

that the district court, without notice, erroneously relied upon Welch’s “lack of

compassion” for his actions without considering his acceptance of responsibility.

This contention is unsupported by the record and is without merit. See United

States v. Orlando, 553 F.3d 1235, 1237-38 (9th Cir. 2009) (rejecting defendant’s

argument that additional notice was required for an upward variance where the

factual basis for it was not a surprise).

       Finally, Welch contends that the sentence above the guidelines range is

substantively unreasonable under the factors set forth in 18 U.S.C. § 3553(a).      In




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light of the totality of the circumstances, the 72-month sentence is not

substantively unreasonable. See id. at 1238-39; Carty, 520 F.3d at 993.

       AFFIRMED.




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