                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 16 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 19-30058

                Plaintiff-Appellee,             D.C. No. 2:18-cr-00280-RSL-1

 v.

DAVID POSEY,                                    MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                          Submitted December 11, 2019**

Before:      WALLACE, CANBY, and TASHIMA, Circuit Judges.

      David Posey appeals from the district court’s judgment and challenges the

37-month sentence imposed following his guilty-plea conviction for tampering

with a witness, in violation of 18 U.S.C. § 1512(b)(3). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Posey contends that the district court procedurally erred by using an

incorrect Guidelines range as the touchstone for the sentence, and by failing to

explain the sentence adequately. We review for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there

is none. The record reflects that the district court used the correctly calculated,

undisputed Guidelines range as the starting point and initial benchmark for the

sentence, and sufficiently explained its determination that a sentence within that

range would not adequately account for Posey’s extensive criminal history. See

United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).

      Posey also contends that the sentence is substantively unreasonable because

the district court gave undue weight to his criminal history. The district court did

not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The

above-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) factors and the totality of the circumstances, including Posey’s criminal

history and the nature of the offense. See Gall, 552 U.S. at 51; see also United

States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be

given the various factors in a particular case is for the discretion of the district

court.”).

      AFFIRMED.




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