                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 21 2012

                                                                         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. 11-30347

               Plaintiff - Appellee,              D.C. No. 4:11-cr-00021-SEH

  v.
                                                  MEMORANDUM *
JOSEPH MICHAEL SURE CHIEF,

               Defendant - Appellant.



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

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Joseph Michael Sure Chief appeals from the 90-month sentence imposed

following his guilty-plea conviction for assault resulting in serious bodily injury, in

violation of 18 U.S.C. §§ 1153 and 113(a)(6), and assault with a dangerous




          *
             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).
weapon, in violation of 18 U.S.C. §§ 1153(a) and 113(a)(3). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Sure Chief contends that the district court committed procedural error when

it stated that Sure Chief was referring to the victim when he said that somebody

was going to die. The district court’s statement was not clearly erroneous. See

United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).

      Sure Chief also contends that his sentence is substantively unreasonable

because the district court gave undue weight to the victim’s sentencing testimony

and sentenced Sure Chief as though he had been convicted of attempted murder.

The above-Guidelines 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).

      AFFIRMED.




                                          2                                   11-30347
