UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee WELCH, Defendant-Appellant, 362 F. App'x 601

MEMORANDUM Robert Lee Welch appeals from the 72-month sentence imposed following his guilty-plea conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 1153(

a) and 113(a)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Welch contends that the district court procedurally erred when it relied on facts unsupported by the record at sentencing. We review for this contention for plain error, and find none. See United States v. Dallman, 533 F.3d 755, 760-61 (9th Cir.2008); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc) (“It would be procedural error for a district court ... to choose a sentence based on clearly erroneous facts”). Moreover, Welch has not shown that any error affected his substantial rights.

See Dallman, 533 F.3d at 762. Welch also contends that the district court, without notice, erroneously relied upon Welch’s “lack of compassion” for his actions without considering his acceptance of responsibility. This contention is unsupported by the record and is without merit. See United States v. Orlando, 553 F.3d 1235, 1237-38 (9th Cir.2009) (rejecting defendant’s argument that additional notice was required for an upward variance where the factual basis for it was not a surprise).

Finally, Welch contends that the sentence above the guidelines range is substantively unreasonable under the factors set forth in 18 U.S.C. § 3553(a). In light of the totality of the circumstances, the 72 month sentence is not substantively unreasonable. See id. at 1238-39; Carty, 520 F.3d at 993. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.