                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        DEC 3 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50435

                Plaintiff-Appellee,             D.C. No. 2:17-cr-00414-SVW

 v.
                                                MEMORANDUM*
AARON MCQUEEN, a.k.a. Michael Tyler,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                          Submitted November 27, 2018**

Before:      CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

      Aaron McQueen appeals from the district court’s judgment and challenges

the 120-month sentence imposed following his guilty-plea conviction for bank

robbery and aiding and abetting in violation of 18 U.S.C. §§ 2113(a), 2(a). We

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



      *
             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).
      McQueen contends that the district court erred procedurally on several

grounds. 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 district court

was not required to give advance notice of its intent to impose an upward variance.

See United States v. Vanderwerfhorst, 576 F.3d 929, 934-35 (9th Cir. 2009).

Moreover, the district court did not plainly err by failing to invite argument

specifically from the government under the circumstances of this case. See United

States v. Waknine, 543 F.3d 546, 553-54 (9th Cir. 2008). And the record shows

that any factual error by the court with respect to the date of McQueen’s release

from his previous prison term does not constitute plain error because it did not

affect the sentence imposed. See Vanderwerfhorst, 576 F.3d at 937. Finally, the

district court’s explanation for the sentence, which touched on several of the 18

U.S.C. § 3553(a) sentencing factors, was adequate. See United States v. Carty, 520

F.3d 984, 992 (9th Cir. 2008) (en banc).

      McQueen also contends that his above-Guidelines sentence is substantively

unreasonable because a within-Guidelines sentence would have been sufficient to

satisfy the goals of sentencing. The district court did not abuse its discretion. See

Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively

reasonable in light of the section 3553(a) sentencing factors and the totality of the

circumstances, including McQueen’s dangerous flight from police pursuit and his


                                           2                                     17-50435
prior robbery and assault convictions. See Gall, 552 U.S. at 51. Furthermore, a

district court may vary upward based on factors already incorporated into the

Guidelines calculations. See United States v. Christensen, 732 F.3d 1094, 1101

(9th Cir. 2013).

      AFFIRMED.




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