United States of America v. Ryan Mathers

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RYAN MATHERS,
Defendant - Appellant.
No. 12-10349
D.C. No. 1:08-cr-00655-HG-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Submitted June 12, 2013 **
Honolulu, Hawaii
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.
Ryan Mathers appeals his four-year prison sentence imposed after he pled
guilty to eleven counts relating to a conspiracy to export military-grade night-
vision goggles. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
JUN 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Mathers’ first argument is that the district court misconstrued United States
Sentencing Guidelines § 2M5.2, by calculating a base level of twenty-six instead of
fourteen. We review de novo a district court’s interpretation of the sentencing
guidelines. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
Mathers’ argument is foreclosed by this Court’s decision in United States v.
Carper, where we held that the night-vision goggles at issue here do not fall within
the definition of “non-fully automatic small arms,” and therefore do not qualify for
a base offense level of fourteen. 659 F.3d 923, 925 (9th Cir. 2011) (internal
quotation marks removed) (quoting U.S.S.G. § 2M5.2(a)).
Mathers also contends that the district court abused its discretion when it
chose not to disregard U.S.S.G. § 2M5.2. A district court has authority to depart
from the sentencing guidelines when it considers the recommended sentence to be
at odds with the law’s purposes. Kimbrough v. United States, 552 U.S. 85, 111
(2007). “[A] district court commits procedural error when it fails to appreciate its
Kimbrough discretion to vary from” the sentencing guidelines, United States v.
Henderson, 649 F.3d 955, 964 (9th Cir. 2011). However, there is no obligation that
a district court exercise its discretion and depart from the guidelines. See Carper,
659 F.3d at 925. The district court was aware of its ability to deviate from the
guidelines, but chose not to do so. There was no abuse of discretion. See id.

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Mathers’ final argument is that his sentence is substantively unreasonable
because it differs from similarly situated defendants. We will only overturn a
sentence as substantively unreasonable if the district court abused its discretion.
Gall v. United States, 552 U.S. 38, 51 (2007). “[T]he need to avoid unwarranted
sentencing disparities is only one factor a district court is to consider in imposing a
sentence.” United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006).
Even if we were to assume that the defendants in the cases cited by Mathers are
similarly situated, the differences are not compelling enough to conclude that the
district court abused its discretion when examined under the totality of the
circumstances. See Gall, 552 U.S. at 51.
AFFIRMED.

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