                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50247

              Plaintiff - Appellee,              D.C. No. CR 11-137-DOC

  v.
                                                 MEMORANDUM*
TIMOTHY MURPHY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                     Argued and Submitted November 21, 2014
                               Pasadena, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and EZRA, District Judge.**

       Timothy Murphy appeals from the district court’s judgment and challenges

his 97-month sentence for mail fraud in violation of 18 U.S.C. § 1341. We affirm.

       Murphy first contends that the district court erred at sentencing by applying


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
the four-level enhancement for a securities law violation committed by an

investment adviser without explicitly identifying the particular securities law that

gave rise to its application. U.S.S.G. § 2B1.1(b)(18)(B)(iii) (current version at

U.S.S.G. § 2B1.1(b)(19)(A)(iii)). We review the issue for plain error because

Murphy did not raise this basis for objection at the district court and thereby failed

to put the district court on notice of the issue. See United States v. Charles, 581

F.3d 927, 933 (9th Cir. 2009). Because the evidence demonstrates that Murphy

violated a securities law, there is no reasonable probability that he would have

received a different sentence. Accordingly, there is no plain error. See United

States v. Sanders, 421 F.3d 1044, 1051 (9th Cir. 2005).

      Murphy next contends that the district court procedurally erred at sentencing

by failing to appreciate its discretion under Kimbrough v. United States, 552 U.S.

85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007) to deviate from the Sentencing

Guidelines based on policy differences with the Guidelines. Because Murphy

raises this issue for the first time on appeal, we again review for plain error,

Sanders, 421 F.3d at 1050, and we find none. At sentencing, the district court

explicitly recognized the advisory nature of the Guidelines and made policy

judgments about sentencing under the fraud guideline. The district court is not

required to vary from the Guidelines on policy grounds if it does not agree that a


                                           2
variance is warranted. United States v. Henderson, 649 F.3d 955, 964 (9th Cir.

2011).

      Finally, Murphy contends that his sentence is substantively unreasonable

because the fraud guideline is fundamentally flawed and Murphy poses a

particularly low risk of recidivism. Murphy also contends that various mitigating

factors warrant a lower sentence. None of these arguments amount to an abuse of

discretion by the district court. See United States v. Edwards, 595 F.3d 1004,

1014–15 (9th Cir. 2010). The district court engaged in extensive consideration of

the factors under 18 U.S.C. § 3553(a), including the particular factors that Murphy

addresses on appeal. Because “the record as a whole reflects rational and

meaningful consideration of the [§ 3553(a)] factors,” the 97-month sentence was

substantively reasonable. See United States v. Ressam, 679 F.3d 1069, 1087 (9th

Cir. 2012) (en banc).

      AFFIRMED.




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