                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 27 2012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. 11-30345

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00097-SEH

  v.
                                                 MEMORANDUM *
CURTIS RAY EDER,

              Defendant - Appellant.



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

                             Submitted July 17, 2012 **

Before:       SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Curtis Ray Eder appeals from the 365-month sentence imposed following

his jury-trial conviction for second-degree murder, in violation of 18 U.S.C.

§§ 1153(a) and 1111, and assault resulting in serious bodily injury, in violation of

18 U.S.C. §§ 1153(a) and 113(a)(6). We have jurisdiction under 28 U.S.C.


          *
             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).
§ 1291, and we affirm.

      Eder first contends that the district court procedurally erred by failing to

grant a two-point downward adjustment to his offense level for acceptance of

responsibility under U.S.S.G. § 3E1.1. In light of the record before it, the district

court did not clearly err by denying the adjustment. See U.S.S.G. § 3E1.1 cmt. n.5;

United States v. Martinez-Martinez, 369 F.3d 1076, 1088-89 (9th Cir. 2004).

      Eder next contends that the district court erred by applying a two-level

vulnerable victim enhancement under U.S.S.G. § 3A1.1(b)(1). Given the district

court’s finding that the victim was in a prone position when he was attacked, the

court did not abuse its discretion in imposing the enhancement. See United States

v. Weischedel, 201 F.3d 1250, 1254-55 (9th Cir. 2000). The district court did not

otherwise procedurally err. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc).

      Eder finally contends that his sentence is substantively unreasonable. In

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

factors, the sentence is substantively reasonable. See Gall v. United States, 552

U.S. 38, 51 (2007).

      AFFIRMED.




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