                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 5 2011

                                                                        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. 10-30130

               Plaintiff - Appellee,             D.C. No. 4:09-cr-00115-SEH

  v.
                                                 MEMORANDUM *
SCOTT ZEAN SHIGLEY,

               Defendant - Appellant.



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

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Scott Zean Shigley appeals from the 72-month sentence imposed following

his guilty-plea conviction for viewing child pornography and possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction


          *
             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). Accordingly, Shigley’s
request for oral argument is denied.
under 28 U.S.C. § 1291, and we affirm.

      Shigley contends that the district court erred by refusing to grant an

additional one-level adjustment for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1(b). His argument is foreclosed by United States v. Johnson, 581

F.3d 994, 1002 (9th Cir. 2009) (district court did not err in declining to grant

additional one-level reduction because defendant’s refusal to waive appellate rights

was rational basis for the government’s decision not to file a § 3E1.1(b) motion).

      Shigley next contends that the district court procedurally erred by failing to

expressly mention and analyze the 18 U.S.C. § 3553(a) sentencing factors,

particularly those sentencing factors identified in support of his arguments for a

variance. The record reflects that the court considered and rejected defendant’s

mitigation arguments, and properly considered the § 3553(a) sentencing factors.

See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc); United

States v. Perez-Perez, 512 F.3d 514, 516 (9th Cir. 2008).

      Lastly, Shigley contends that the district court imposed a substantively

unreasonable sentence. He argues that the court did not understand the difference

between the appellate and district court sentencing standards; improperly refused to

disregard U.S.S.G. § 2G2.2, the child pornography Guideline, on policy grounds;

and imposed a sentence that was greater than necessary. The record reflects that


                                           2                                       10-30130
the court applied the appropriate standard at sentencing. The court was not

obligated to vary from the child pornography Guideline on policy grounds. See

United States v. Henderson, No. 09-50544, 2011 WL 1613411, at *8 (9th Cir.

April 29, 2011). Further, the low-end Guideline sentence is substantively

reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)

sentencing factors. See Gall v. United States, 552 U.S. 38, 51 (2007).

      To the extent Shigley raises the new argument in a letter filed pursuant to

Rule 28(j) of the Federal Rules of Appellate Procedure, that the district court did

not appreciate its Kimbrough discretion to vary from the child pornography

Guideline based on policy grounds, that issue is not properly before us. See

Pearson v. Muntz, 639 F.3d 1185, 1191 n.5 (9th Cir. 2011). In any event, the

record does not support the conclusion that the district court failed to appreciate its

discretion to vary from the Guidelines. See Henderson, 2011 WL 1613411, at *8.

      AFFIRMED.




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