                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 19 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10349

              Plaintiff - Appellee,              D.C. No. 1:08-cr-00655-HG-1

  v.
                                                 MEMORANDUM*
RYAN MATHERS,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Hawaii
                Helen W. Gillmor, Senior District Judge, Presiding

                             Submitted June 12, 2013**
                                Honolulu, Hawaii

Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.

       Ryan Mathers appeals his four-year prison sentence imposed after he pled

guilty to eleven counts relating to a conspiracy to export military-grade night-

vision goggles. 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 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).
      Mathers’ first argument is that the district court misconstrued United States

Sentencing Guidelines § 2M5.2, by calculating a base level of twenty-six instead of

fourteen. We review de novo a district court’s interpretation of the sentencing

guidelines. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

Mathers’ argument is foreclosed by this Court’s decision in United States v.

Carper, where we held that the night-vision goggles at issue here do not fall within

the definition of “non-fully automatic small arms,” and therefore do not qualify for

a base offense level of fourteen. 659 F.3d 923, 925 (9th Cir. 2011) (internal

quotation marks removed) (quoting U.S.S.G. § 2M5.2(a)).

      Mathers also contends that the district court abused its discretion when it

chose not to disregard U.S.S.G. § 2M5.2. A district court has authority to depart

from the sentencing guidelines when it considers the recommended sentence to be

at odds with the law’s purposes. Kimbrough v. United States, 552 U.S. 85, 111

(2007). “[A] district court commits procedural error when it fails to appreciate its

Kimbrough discretion to vary from” the sentencing guidelines, United States v.

Henderson, 649 F.3d 955, 964 (9th Cir. 2011). However, there is no obligation that

a district court exercise its discretion and depart from the guidelines. See Carper,

659 F.3d at 925. The district court was aware of its ability to deviate from the

guidelines, but chose not to do so. There was no abuse of discretion. See id.


                                          2
      Mathers’ final argument is that his sentence is substantively unreasonable

because it differs from similarly situated defendants. We will only overturn a

sentence as substantively unreasonable if the district court abused its discretion.

Gall v. United States, 552 U.S. 38, 51 (2007). “[T]he need to avoid unwarranted

sentencing disparities is only one factor a district court is to consider in imposing a

sentence.” United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006).

Even if we were to assume that the defendants in the cases cited by Mathers are

similarly situated, the differences are not compelling enough to conclude that the

district court abused its discretion when examined under the totality of the

circumstances. See Gall, 552 U.S. at 51.

      AFFIRMED.




                                           3
