                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 14 2009

                                                                        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. 09-30091

               Plaintiff - Appellee,             D.C. No. 1:03-CR-00077-RFC

   v.
                                                 MEMORANDUM *
 BYRON WAYNE MILLER,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Montana
                  Richard F. Cebull, Chief District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Byron Wayne Miller appeals from the 270-month sentence imposed upon

resentencing following a successful 28 U.S.C. § 2255 motion. We have

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

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

AK/Research
       Miller contends that the sentence imposed is unreasonable because the

district court did not consider, weigh, and give effect to his substantial post-

sentencing rehabilitation in fashioning the sentence. The record reflects that the

district court did not procedurally err, and that the sentence is reasonable. See Gall

v. United States, 128 S. Ct. 586, 596-97 (2007); see also United States v. Carty,

520 F.3d 984, 992-93 (9th Cir. 2008) (en banc).

       AFFIRMED.




AK/Research                                2                                       09-30091
