United States of America v. MARSHALL LYNN McCARTER

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
AK/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARSHALL LYNN McCARTER,
Defendant - Appellant.
No. 08-50544
D.C. No. 2:07-cr-00436-LKK
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Marshall Lynn McCarter appeals from the 110-month sentence imposed
following his guilty-plea conviction for possession of a firearm after having been
previously convicted of an offense punishable by a term exceeding one year, in
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
McCarter contends that the district court erred by failing to appreciate its
discretion to grant a variance based on the fact that he would likely have received a
lesser sentence had he been prosecuted for the same offense in state court. This
argument lacks merit. See United States v. Ringgold, 571 F.3d 948, 950-53 (9th
Cir. 2009) (holding that a district court does not commit procedural error in its
analysis of the statutory sentencing factors if it does not consider disparities
between state and federal sentences for the same criminal conduct).
McCarter also contends that the district court erred by failing to explain why
it rejected his argument that he be sentenced without a four-level enhancement for
having a firearm with an altered or obliterated serial number. The record as a
whole indicates that the district court considered and rejected the arguments and
evidence submitted by McCarter in support of this contention. See Rita v. United
States, 551 U.S. 338, 356-57 (2007).
Finally, McCarter contends that the sentence imposed is unreasonable
because the enhancement under U.S.S.G. § 2K2.1(b)(4)(B) is not related to any
proper sentencing goal. The record reflects that the district court did not
procedurally err by applying the enhancement, and the sentence is substantively

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reasonable. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007); see also
United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc); U.S.S.G.
§ 2K2.1, cmt. n. 8 (2008).
AFFIRMED.

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