                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 24 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10648

               Plaintiff - Appellee,             D.C. No. 3:10-cr-00349-JSW

  v.
                                                 MEMORANDUM*
SERGIO IVAN GUTIERREZ,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                            Submitted January 21, 2014**

Before:        CANBY, SILVERMAN, and PAEZ, Circuit Judges.

       Sergio Ivan Gutierrez appeals from the district court’s judgment and

challenges the 144-month sentence imposed following his jury-trial conviction for

one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349,



          *
             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).
and seven counts of mail fraud, in violation of 18 U.S.C. § 1342. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

         Gutierrez contends that the district court erred by failing to give him notice

as required by Federal Rule of Criminal Procedure 32(h) before imposing an

upward departure. Because the district court imposed a variance rather than a

departure, Rule 32(h) does not apply. See Irizarry v. United States, 553 U.S. 708,

714 (2008).

         Gutierrez also contends that the district court procedurally erred by

improperly relying on Gutierrez’s failure to apologize to the victims, and by failing

to give a sufficient explanation for the sentence. We review for plain error, see

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

none. The district court properly considered Gutierrez’s personal characteristics,

including his lack of contrition and failure to apologize, in the context of the 18

U.S.C. § 3553(a) sentencing factors, and adequately explained the sentence

imposed. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en

banc).

         Gutierrez further contends that his sentence is substantively unreasonable.

The district court did not abuse its discretion in imposing Gutierrez’s sentence. See

Gall v. United States, 552 U.S. 38, 51 (2007). The sentence nine months above the


                                             2                                    12-10648
Guidelines range is substantively reasonable in light of the section 3553(a)

sentencing factors and the totality of the circumstances, including Gutierrez’s

failure to acknowledge the substantial harm to his victims, and the need for

deterrence and protection of the public. See id.

      AFFIRMED.




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