United States of America v. Michael Duane Humburgs

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL DUANE HUMBURGS,
Defendant-Appellant.
No. 17-30143
D.C. No. 3:16-cr-05247-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Michael Duane Humburgs appeals from the district court’s judgment and
challenges the 72-month sentence imposed following his guilty-plea conviction for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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). Humburgs’s request for oral
argument is therefore denied.
FILED
MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 17-30143
Humburgs contends that the district court procedurally erred by failing to
notify him that it might vary upward, and by imposing sentence in reliance on the
allegedly unsupported finding that he is dangerous. We review for plain error, see
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
conclude that there is none. The district court was not required to give advance
notice of its intent to impose an above-Guidelines sentence, see United States v.
Christensen, 732 F.3d 1094, 1102 (9th Cir. 2013), and it gave Humburgs a
meaningful opportunity to contest the variance. Moreover, the district court’s
finding that Humburgs was dangerous was supported by his admission to
possessing a stolen handgun affixed with a laser sight and loaded with an extended
magazine, as well as his 1995 assault conviction, despite its remoteness in time.
Humburgs also contends that his sentence is substantively unreasonable
because it rested on the 1995 assault conviction and a finding that he was
dangerous, and because his sentence was higher than those of his co-defendants.
The district court did not abuse its discretion in imposing Humburgs’s sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). Humburgs’s co-defendants did
not plead to the same charge as Humburgs; therefore, there is no basis to conclude
that any sentencing disparity is unwarranted. See United States v. Carter, 560 F.3d
1107, 1121 (9th Cir. 2009). The above-Guidelines sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of

-- 2 of 3 --

3 17-30143
the circumstances, including the seriousness of Humburgs’s criminal history and
the nature and circumstances of the offense. See Gall, 552 U.S.at 51.
AFFIRMED.

-- 3 of 3 --