United States of America v. TOMMY MCINTOSH, Jr.

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOMMY MCINTOSH, Jr.,
Defendant - Appellant.
No. 09-10155
D.C. No. 5:08-CR-00377-RMW-1
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Submitted February 3, 2010**
San Francisco, California
Before: HUG, BEEZER and HALL, Circuit Judges.
Defendant-appellant Tommy McIntosh, Jr. (“McIntosh”) appeals from a
final judgment convicting him of one count of being a felon in possession of a
firearm and ammunition. McIntosh was found guilty of the crime after a one-day
FILED
JUN 16 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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bench trial, and the district court sentenced him to 108 months imprisonment. We
have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.
The facts of this case are known to the parties. We do not repeat them.
I
We review “all sentencing decisions” for an abuse of discretion. United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
II
The district court acted well within its discretion by sentencing McIntosh to
108 months imprisonment, 12 months below the statutory maximum. Contrary to
McIntosh’s assertions, the district court engaged in a “thorough and thoughtful
consideration of the § 3553(a) factors.” United States v. Cabaccang, 481 F.3d
1176, 1188 (9th Cir. 2007). In reaching its decision, the district court explicitly
acknowledged McIntosh’s “unfortunate upbringing” and struggles with alcohol
abuse. Given McIntosh’s involvement with gangs and pervasive and violent
criminal history, the district court acted within its discretion in ordering an above
guidelines sentence “to afford adequate deterrence to criminal conduct” and “to
protect the public from further crimes of the defendant.” 18 U.S.C.
§ 3553(a)(2)(B) and (C).
AFFIRMED.

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