                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-30216

                Plaintiff-Appellee,             D.C. No. 6:16-cr-00078-MC

 v.
                                                MEMORANDUM*
SCOTT RAYMOND BEARD,

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                            Submitted March 13, 2018**

Before:      LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

      Scott Raymond Beard appeals from the district court’s judgment and

challenges the 60-month sentence imposed following his guilty-plea convictions

for two counts of theft concerning a program receiving federal funds, in violation

of 18 U.S.C. § 666(a)(1)(A), and two counts of money laundering, in violation of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
18 U.S.C. § 1956 (a)(1)(B)(i). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      First, Beard contends that the district court erred by failing to provide notice

under Federal Rule of Criminal Procedure 32(h) of its intent to depart upwards.

The record reflects that the district court imposed an upward variance based on the

18 U.S.C. § 3553(a) sentencing factors, rather than an upward departure.

Therefore, the court was not required to give notice under Rule 32(h). See Irizarry

v. United States, 553 U.S. 708, 714-16 (2008).

      Beard next argues that the district court procedurally erred by failing to

explain adequately the sentence imposed. We review for plain error, see United

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude

that there is none. The record reflects that the district court used the correctly

calculated Guidelines range as its starting point and adequately explained its

reasons for the above-Guidelines sentence. See United States v. Carty, 520 F.3d

984, 992 (9th Cir. 2008) (en banc). Contrary to Beard’s contention, the district

court was empowered to consider the extent to which the Guidelines did not

sufficiently account for the nature and circumstances of Beard’s offense, which

involved a serious violation of the public trust. See United States v. Christensen,

732 F.3d 1094, 1101 (9th Cir. 2013).

      Finally, Beard contends that his sentence is substantively unreasonable. The


                                           2                                     16-30216
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,

51 (2007). The above-Guidelines sentence is substantively reasonable in light of

the section 3553(a) factors and the totality of the circumstances. See Gall, 552

U.S. at 51.

      AFFIRMED.




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