                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 13 2010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. 09-30362

               Plaintiff - Appellee,              D.C. No. 1:03-cr-00131-BLW

  v.
                                                  MEMORANDUM *
TIMOTHY JAMES BUTLER,

               Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                            Submitted December 6, 2010 **

Before:        GOODWIN, RYMER, and GRABER, Circuit Judges.

       Timothy James Butler appeals from the 160-month sentence imposed upon

resentencing following a successful 28 U.S.C. § 2255 motion. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Butler contends that the district court procedurally erred by limiting its

          *
             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).
consideration of his post-sentence rehabilitation in order to avoid unwarranted

sentencing disparities. The record reflects that the district court fully considered

Butler’s post-sentence rehabilitation, in conjunction with the remaining 18 U.S.C.

§ 3553(a) sentencing factors, when it granted a 21-month downward variance from

the advisory Guidelines range. See United States v. Green, 152 F.3d 1202, 1207-

08 (9th Cir. 1998) (per curiam). The district court did not procedurally err, and the

sentence imposed is substantively reasonable in light of the totality of the

circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

      AFFIRMED.




                                           2                                    09-30362
