FILED
NOT FOR PUBLICATION AUG 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10246
Plaintiff - Appellee, D.C. No. 2:06-CR-00309-RCJ-
PAL-1
v.
CARL CHESTER, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Submitted August 13, 2013**
San Francisco, California
Before: GRABER, BEA, and HURWITZ, Circuit Judges.
Carl Chester was convicted by a jury of three counts of possession with
intent to distribute, and distribution of, cocaine base in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A)(iii). He appeals from his amended sentence of 168 months
*
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).
imposed following the district court’s partial grant of his 28 U.S.C. § 2255 motion.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we
affirm.
Chester argues that he should not have received any criminal history points
for (1) several offenses committed while he was between the ages of 18 and 21
because he was not “fully mature” at the time; (2) a 2003 conviction for
obstructing a police officer because the offense was not “sophisticated”; and (3) a
misdemeanor conviction for domestic violence because it was his first crime of
violence. Under the Sentencing Guidelines, however, Chester’s chosen factors are
irrelevant to the calculation of criminal history points; his arguments fail.
Next, Chester argues he should not have received any criminal history points
for his 2005 conviction for obstructing a police officer arising out of an incident
when police officers attempted to stop a speeding truck and Chester was found
inside the vehicle. Chester argues that he should get no criminal history points
because he was not the driver. However, he was nonetheless convicted of
obstructing a police officer, so the district court did not err in awarding him
criminal history points for that offense. Finally, Chester argues that several
offenses should have been consolidated for purposes of calculating his criminal
history points. However, each of the offenses was separated by an intervening
2
arrest, so under the Sentencing Guidelines, these offenses must be considered
separately. U.S.S.G. § 4A1.2(a)(2).
Chester’s argument that the district court erred in applying an obstruction of
justice enhancement to his sentence is foreclosed by our law of the case doctrine,
which states that “the decision of an appellate court on a legal issue must be
followed in all subsequent proceedings in the same case.” Caldwell v. Unified
Capital Corp. (In re Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir. 1996)
(internal quotation marks omitted). At the initial sentencing, the district court
applied the obstruction of justice enhancement because it found Chester had lied to
the jury during his trial testimony. Chester appealed the application of the
enhancement, and we affirmed, holding that “[t]he district court’s finding that
Chester misrepresented material facts to the jury, such as falsely claiming to have
never handled the drugs, and falsely stating that his primary source of revenue was
gambling, was not clearly erroneous.” United States v. Chester, 319 F. App’x 597,
601(9th Cir. 2009) (unpublished decision).
AFFIRMED.
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