                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 14 2009

                                                                        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. 08-50544

               Plaintiff - Appellee,             D.C. No. 2:07-cr-00436-LKK

   v.
                                                 MEMORANDUM *
 MARSHALL LYNN McCARTER,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence K. Karlton, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Marshall Lynn McCarter appeals from the 110-month sentence imposed

following his guilty-plea conviction for possession of a firearm after having been

previously convicted of an offense punishable by a term exceeding one year, in

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

AK/Research
violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

       McCarter contends that the district court erred by failing to appreciate its

discretion to grant a variance based on the fact that he would likely have received a

lesser sentence had he been prosecuted for the same offense in state court. This

argument lacks merit. See United States v. Ringgold, 571 F.3d 948, 950-53 (9th

Cir. 2009) (holding that a district court does not commit procedural error in its

analysis of the statutory sentencing factors if it does not consider disparities

between state and federal sentences for the same criminal conduct).

       McCarter also contends that the district court erred by failing to explain why

it rejected his argument that he be sentenced without a four-level enhancement for

having a firearm with an altered or obliterated serial number. The record as a

whole indicates that the district court considered and rejected the arguments and

evidence submitted by McCarter in support of this contention. See Rita v. United

States, 551 U.S. 338, 356-57 (2007).

       Finally, McCarter contends that the sentence imposed is unreasonable

because the enhancement under U.S.S.G. § 2K2.1(b)(4)(B) is not related to any

proper sentencing goal. The record reflects that the district court did not

procedurally err by applying the enhancement, and the sentence is substantively


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reasonable. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007); see also

United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc); U.S.S.G.

§ 2K2.1, cmt. n. 8 (2008).

       AFFIRMED.




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