                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 19 2010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. 09-30126

             Plaintiff - Appellee,               D.C. No. 3:08-cr-05407-RBL-3

  v.
                                                 MEMORANDUM *
BRYAN M. SMITH,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-30159

             Plaintiff - Appellee,               D.C. No. 3:08-cr-05407-RBL-1

  v.

BRETT M. SMITH,

             Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted February 5, 2010
                               Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.

      Appellant Bryan Smith (Bryan) challenges his fifty-four month prison term

following his conviction of one count of mail fraud. Bryan contends that the

sentence above the recommended Sentencing Guidelines (Guidelines) range was

substantively unreasonable because the district court improperly considered his

leadership role in its analysis of the 18 U.S.C. § 3553(a) factors.

      Appellant Brett Smith (Brett) challenges his one hundred and twenty-month

sentence following his conviction of one count of mail fraud. Brett maintains that

the district court erred in denying a continuance so that he could address the above-

Guidelines sentence imposed. Brett also contends that the above-Guidelines

sentence was substantively unreasonable because the district court improperly

emphasized the need for general deterrence. We affirm the sentences imposed as

to both defendants.




1.    In its consideration of the 18 U.S.C. § 3553(a) factors, the district court was

not precluded from considering Bryan Smith’s leadership role, although that factor

was already accounted for in the Guidelines computation. See United States v.

Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009). In any event, the district court

properly relied on several factors independent of Bryan’s leadership role to support


                                           2
an above-Guidelines sentence. See id. (“It was the district court’s prerogative to

impose a sentence based on the totality of the circumstances. The court’s

conclusions were reasonable, substantiated by the record, and evaluated with

careful reference to the § 3553(a) factors.”) (citations omitted).




2.    Because the district court’s sentence of Brett Smith was a variance under

18 U.S.C. § 3553(a) rather than a departure from the Guidelines, the district court

was not required to continue the hearing. See United States v. Vanderwerfhorst,

576 F.3d 929, 934-35 (9th Cir. 2009). Moreover, Brett’s counsel had a meaningful

opportunity to address the sentencing factors. See United States v. Cruz-Perez, 567

F.3d 1142, 1147 (9th Cir. 2009) (“Garden variety considerations of culpability,

criminal history, likelihood of re-offense, seriousness of the crime, nature of the

conduct and so forth should not generally come as a surprise to trial lawyers who

have prepared for sentencing.”) (citation omitted).




3.    Brett Smith’s sentence was substantively reasonable. The district court did

not improperly emphasize general deterrence in its consideration of the § 3553(a)

factors, and appropriately “tailor[ed] the sentence to the seriousness of [Brett’s]

conduct . . .” United States v. Hilgers, 560 F.3d 944, 947 (9th Cir. 2009) (citation


                                           3
omitted); see also United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.

2009), as amended (“As noted, deterrence was one factor the court considered in

determining the sentence. Contrary to [the defendant’s] contention, the court did

not give that factor impermissible weight or ignore or downplay the other

factors.”).

       AFFIRMED.




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