                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 09 2011

                                                                        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. 10-30141

               Plaintiff - Appellee,             D.C. No. 6:09-cr-00023-DWM

  v.
                                                 MEMORANDUM *
KIMBERLY JEAN PALMER,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Kimberly Jean Palmer appeals from the 48-month sentence imposed

following her guilty-plea for wire fraud/business embezzlement, in violation of

18 U.S.C. § 1343, and bank fraud/employer embezzlement scheme, in violation of

18 U.S.C. § 1344. 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 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).
      Palmer contends that her sentence is substantively unreasonable because it is

based on her need for treatment, does not reflect her impulse control condition, and

creates an unwarranted sentencing disparity with similar situated defendants. In

light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing

factors, the sentence is substantively reasonable. See United States v. Carty, 520

F.3d 984, 991-93 (9th Cir. 2008) (en banc).

      Palmer also contends that the district court departed from the Sentencing

Guidelines and failed to provide notice under Federal Rule of Criminal Procedure

32(h). The record reflects that the district court varied from the Guidelines under

18 U.S.C. § 3553(a), and it had no obligation to provide Palmer notice. See

Irizarry v. United States, 553 U.S. 708, 714 (2008) (limiting the Rule 32(h) notice

requirement to departures under 18 U.S.C. § 3553(b)).

      Contrary to Palmer’s contention, she is not entitled to judicial estoppel.

      AFFIRMED.




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