                                                                             FILED
                            NOT FOR PUBLICATION                               NOV 19 2012

                                                                         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. 12-30094

               Plaintiff - Appellee,              D.C. No. 4:11-cr-00087-SEH

  v.
                                                  MEMORANDUM *
DAVID LEE SPOTTED EAGLE,

               Defendant - Appellant.



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

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       David Lee Spotted Eagle appeals from the 57-month sentence imposed

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

violation of 18 U.S.C. §§ 1153(a) and 113(a)(6). We have jurisdiction under 28




          *
             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).
U.S.C. § 1291, and we affirm.

      Spotted Eagle contends that the district court erred by applying a two-level

vulnerable victim enhancement pursuant to U.S.S.G. § 3A1.1(b)(1). Specifically,

he contends that there was insufficient evidence to support the court’s finding that

the victim was asleep. The court’s finding is supported by the record and is not

clearly erroneous. See United States v. Holt, 510 F.3d 1007, 1010 (9th Cir. 2007).

      To the extent Spotted Eagle contends that the district court procedurally

erred by failing to explain why the enhancement was warranted, this contention

fails. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

      AFFIRMED.




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