                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      JUL 17 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 14-30155

              Plaintiff - Appellee,              D.C. No. 2:14-cr-00122-RSM-1

    v.
                                                 MEMORANDUM*
 MUSAB MOHAMMED MASMARI,

              Defendant - Appellant.

                    Appeal from the United States District Court
                       for the Western District of Washington
                    Ricardo S. Martinez, District Judge, Presiding

                          Argued and Submitted July 7, 2015
                                Seattle, Washington

Before: NGUYEN and FRIEDLAND, Circuit Judges and CARNEY,** District
Judge.

         Musab Mohammed Masmari pled guilty to a single count of arson, 18

U.S.C. § 844(i). He appeals his above-Guidelines sentence of 120 months’

imprisonment followed by 3 years of supervised release. We have jurisdiction


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Cormac J. Carney, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

      Because Masmari failed to object below, we review whether the district

court complied with Federal Rule of Criminal Procedure 32(h) for plain error.

United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th Cir. 2008). Even

assuming that the district court failed to adhere to the strict letter of Rule 32(h), the

error did not “affect[] [Masmari’s] substantial rights,” see Evans-Martinez, 530

F.3d at 1167 (quoting United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.

2005) (en banc)), because Masmari has not demonstrated “the probability of a

different result . . . sufficient to undermine confidence in the outcome” of the

sentencing. Ameline, 409 F.3d at 1078 (quoting United States v. Dominguez

Benitez, 542 U.S. 74 (2004)). The plea agreement established that the parties

would jointly recommend the mandatory minimum of 60 months’ imprisonment.

Thus, the primary issue at sentencing was whether a longer sentence should be

imposed. This issue was thoroughly addressed in the PSR, the parties’ sentencing

memoranda, and at the hearing. As a result, the underlying purpose of Rule

32(h)—“to ensure that issues with the potential to impact sentencing are fully

aired,” Evans-Martinez, 530 F.3d at 1168—was served in this case, and Masmari

failed to show a “probability of a different result” sufficient to justify reversal on

                                            2
plain error review.1 See Ameline, 409 F.3d at 1078.

      Masmari’s sentence was otherwise procedurally reasonable. See United

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The district

court adequately explained the sentence imposed, discussing the factors set forth in

18 U.S.C. § 3553 as they related to Masmari and the offense conduct. See, e.g.,

Gall v. United States, 552 U.S. 38, 53–56 (2007). Moreover, the district court did

not cross-reference to the Guideline for attempted murder. See U.S. Sentencing

Guidelines Manual §§ 2A2.1, 2K1.4(c) (2013). It merely observed in passing that

the sentence imposed was close to what the sentence would have been if the cross-

reference had been used. Thus, Masmari was not entitled to an evidentiary

hearing as to whether he acted with the “inten[t] to cause death or serious bodily

injury.” Id. § 2K1.4(c). Similarly, the district court did not impose a hate crime

enhancement pursuant to Guideline § 3A1.1, so no evidentiary hearing was

required as to a potential hate crime motivation.


1
  The government conceded plain error in Evans-Martinez, 530 F.3d at 1167–68,
so all that remained for the court to consider was whether the error “seriously
affect[ed] the fairness, integrity, or public reputation of judicial proceedings,” id. at
1167 (quoting Ameline, 409 F.3d at 1078). Thus, Evans-Martinez does not stand
for the proposition that a technical violation of Rule 32(h) always requires reversal
on plain error review.

                                           3
      Finally, reviewing for abuse of discretion, United States v. Autery, 555 F.3d

864, 868–71 (9th Cir. 2009), we conclude that the sentence was substantively

reasonable, particularly in light of the large number of lives endangered by

Masmari’s conduct. See generally 18 U.S.C. § 3553(a); United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc).

      AFFIRMED.




                                         4
