                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 25 2010

                                                                       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. 09-30272

              Plaintiff - Appellee,              D.C. No. 3:08-CR-00367-MO-1

  v.
                                                 MEMORANDUM *
CHARLIE RUSSELL MCCASLAND,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted May 5, 2010
                                Portland, Oregon

Before: KOZINSKI, Chief Judge, KLEINFELD and IKUTA, Circuit Judges.




       Contrary to McCasland’s argument, the district court did not violate Federal

Rule of Criminal Procedure 32(i)(1)(C) by failing to give him notice of the facts in

the comparison case referenced at his sentencing hearing. Rule 32 “does not apply



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to [18 U.S.C.] § 3553 variances by its terms,” Irizarry v. United States, 128 S. Ct.

2198, 2202 (2008) in part because “[s]entencing is a fluid and dynamic process and

the court itself may not know until the end whether a variance will be adopted, let

alone on what grounds. . . . Adding a special notice requirement whenever a judge

is contemplating a variance may create unnecessary delay,” id. at 2203 (citation

and internal quotation marks omitted).

      Because McCasland failed to object to the comparison case at his sentencing

hearing, he forfeited his right to challenge it, and we review for plain error. United

States v. Rodriguez-Rodriguez, 441 F.3d 767, 771–72 (9th Cir. 2006). We are not

convinced that the district court erred by considering the facts in another

defendant’s case when making the determinations required by § 3553(a)(6). But

even if there had been an error, it certainly was not plain at the time of the appeal.

See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). For

example, we have held that a district court’s sentence was reasonable even though

the district court compared the criminal history and post-arrest rehabilitation

efforts of a defendant to that of his co-defendant during sentencing. United States

v. Saeteurn, 504 F.3d 1175, 1181–83 (9th Cir. 2007); see also United States v.

Autery, 555 F.3d 864, 875 (9th Cir. 2009). None of the cases cited by McCasland

preclude a district court from considering a comparison case when making the


                                           2
determinations required by § 3553(a)(6). Nor have we found any case so holding.

Furthermore, the district court adequately explained the reason for the extent of the

variance below the Guidelines range. See United States v. Bendtzen, 542 F.3d 722,

728–29 (9th Cir. 2008); United States v. Mix, 457 F.3d 906, 911–12 (9th Cir.

2006).

         Because the district court did not commit plain error or fail to offer an

adequate explanation for McCasland’s sentence, the district court did not abuse its

discretion by denying the motion to reconsider or motion to supplement the record.

In light of our determination, there is no reason for us to take the unusual step of

granting McCasland’s motion to supplement the record on appeal. See Daly-

Murphy v. Winston, 837 F.2d 348, 351 (9th Cir. 1988).

         AFFIRMED.




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