FILED
NOT FOR PUBLICATION APR 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30068
Plaintiff - Appellee, D.C. No. 1:11-cr-00120-JDS-1
v.
MEMORANDUM*
ALI DWAYNE KHAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, Senior District Judge, Presiding
Submitted April 11, 2014**
Seattle, Washington
Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.
Defendant-Appellant Ali Dwayne Khan appeals his convictions for
conspiracy to possess methamphetamine with intent to distribute; possession with
intent to distribute methamphetamine; and possession of firearms in furtherance of
*
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).
a drug trafficking crime. Khan also appeals his sentence and the district court’s
refusal to award him a downward sentencing adjustment.
During Khan’s trial, the admission of testimony regarding his prior
conviction was error. Its erroneous admission is harmless if the “government
provides a fair assurance that the error did not substantially sway the verdict.”
United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir. 2005). Here, the jury
watched a video of the drug transaction which pictured Khan and captured his
words; it also heard extensive testimony about Khan’s involvement in the drug
transaction. We conclude that the reference to Khan’s status as a felon did not
substantially sway the verdict.
We review for clear error the district court’s determination that Khan did not
accept responsibility for purposes of a downward sentencing adjustment. United
States v. Cantrell, 433 F.3d 1269, 1284 (9th Cir. 2006). Here, the district court did
not commit clear error in refusing to award a downward adjustment for acceptance
of responsibility after considering Khan’s assault on a guard while in custody and
his conviction on three counts to which he had pleaded not guilty. The substantive
reasonableness of a sentence is reviewed for abuse of discretion. United States v.
Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). The district court
articulated its reasons for imposing Khan’s sentence and these reasons are not
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illogical, implausible, or without support in inferences that can be drawn from the
record. See id., n. 8. The district court did not abuse its discretion. We therefore
affirm the district court.
AFFIRMED.
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