                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 12 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30007

               Plaintiff - Appellee,             D.C. No. 1:12-cr-00097-SPW

  v.
                                                 MEMORANDUM*
GARY TED AMES,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                           Submitted December 9, 2014**

Before:        WALLACE, LEAVY, and BYBEE, Circuit Judges.

       Gary Ted Ames appeals from the district court’s judgment and challenges

the 36-month sentence imposed following his jury-trial conviction for being a felon

in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

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).
      Ames contends that the district court erred by failing to provide notice under

Federal Rule of Criminal Procedure 32(h) of its intent to depart upwards. The

record does not support Ames’s contention that the district court applied an upward

departure under U.S.S.G. § 4A1.3(a)(1). Instead, the court imposed an upward

variance based on the 18 U.S.C. § 3553(a) factors; therefore, it was not required to

give notice under Rule 32(h). See Irizarry v. United States, 553 U.S. 708, 714-16

(2008).

      Ames next contends that his above-Guidelines sentence is substantively

unreasonable. The district court did not abuse its discretion in imposing Ames’s

sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Ames’s sentence, 12-

months above the top of the advisory Guidelines range, is substantively reasonable

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

including the need to deter and the nature and circumstances of the offense. See id.

      AFFIRMED.




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