United States of America v. Collin Michael Baird

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COLLIN MICHAEL BAIRD,
Defendant - Appellant.
No. 13-50044
D.C. No. 3:12-cr-00578-IEG-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Submitted December 18, 2013 **
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Collin Michael Baird challenges the 78-month sentence imposed following
his guilty-plea conviction for receipt of images of minors engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
FILED
MAR 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Baird contends that the district court procedurally erred by failing to address
his argument that the district court should exercise its discretion under Kimbrough
v. United States, 552 U.S. 85 (2007) to vary downward. Because Baird did not
object on these grounds in the district court, we review for plain error and Baird is
therefore required to show that there is an error that is plain and that affects
substantial rights because there is a reasonable probability that the sentence would
have been different absent the alleged error. See United States v. Dallman, 533
F.3d 755, 761-62 (9th Cir. 2008). Because the district court explained its reasons
for the downward variance and sentence and there is no indication that the district
court did not understand its authority to vary from the Guidelines range based on
Kimbrough, we hold that there is not plain error affecting substantial rights. See
Dallman, 533 F.3d at 761-62; cf. United States v. Henderson, 649 F.3d 955, 958.
964 (9th Cir. 2011) (remanding to the district court because the district court made
comments suggesting that it believed that it did not have the discretion under
Kimbrough to reject the child pornography Guidelines).
AFFIRMED.
2

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