                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 08 2010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. 09-30357

               Plaintiff - Appellee,             D.C. No. 1:04-cr-00087-RFC-5

  v.
                                                 MEMORANDUM *
RONALD E. SMITH,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Montana
                  Richard F. Cebull, Chief District Judge, Presiding

                             Submitted October 6, 2010 **
                                Seattle, Washington

Before:        KOZINSKI, Chief Judge, THOMAS and M. SMITH, Circuit
               Judges.

       The district court considered the correct guideline range and adequately

explained its decision to impose a stricter sentence. Federal Rule of Criminal

Procedure 32(h) does not apply to the variance. Irizarry v. United States, 553 U.S.

          *
             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).
                                                                             page 2

708, 714 (2008). Even if it did, the government’s re-sentencing memorandum

gave the defendant adequate notice of the grounds for lengthening his sentence.

See Fed. R. Crim. P. 32(h); cf. United States v. Cruz-Perez, 567 F.3d 1142, 1147

(9th Cir. 2009).


      AFFIRMED.
