NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10081
Plaintiff - Appellee, D.C. No. 1:11-cr-00479-JMS-3
v.
MEMORANDUM*
TYRONE FAIR, AKA Tale, AKA Tolley,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Submitted February 18, 2015**
Honolulu, Hawaii
Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.
A jury convicted Tyrone Fair of (1) conspiring to distribute, and to possess
with intent to distribute, 50 grams or more of methamphetamine, and (2) possessing
50 grams or more of methamphetamine with intent to distribute. See 21 U.S.C.
*
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).
§§ 841(a)(1), 841(b)(1)(A)(viii), 846. Fair now appeals his convictions and
sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We affirm.
Sufficient evidence supports Fair’s convictions. See United States v. Nevils,
598 F.3d 1158, 1163-70 (9th Cir. 2010) (en banc). The jury was entitled to credit
Fair’s alleged co-conspirator’s testimony, and we must assume that it did so. See
id. at 1170; see also United States v. Tam, 240 F.3d 797, 806 (9th Cir. 2011)
(holding that uncorroborated accomplice testimony was sufficient to support a
conviction). Viewing the co-conspirator’s testimony in the light most favorable to
the prosecution, we conclude that a rational trier of fact could convict Fair based on
that testimony. See Nevils, 598 F.3d at 1164-65.
The jury instructions did not constructively amend the indictment against
Fair. Because “the proof offered at trial matched the charges made in the
indictment,” there was no risk that “the jury instructions allowed [Fair] to be
convicted on the basis of different behavior than that alleged in the original
indictment.” United States v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006) (internal
quotation marks omitted).
The district court did not err at sentencing. Fair’s sentence is not
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substantively unreasonable. See United States v. Vasquez, 654 F.3d 880, 886 (9th
Cir. 2011); United States v. Burgum, 633 F.3d 810, 813 (9th Cir. 2011). The record
does not support Fair’s arguments that the district court “[gave] no meaningful
explanation” for Fair’s sentence, “disregarded” Fair’s letters of support, or
“penalized [Fair] for exercising his constitutional right to meaningfully appeal his
criminal conviction.”
Finally, the 18 U.S.C. § 3553(f) safety valve is not unconstitutional under
Alleyne v. United States, 133 S. Ct. 2151 (2013). See United States v.
Lizarraga-Carrizales, 757 F.3d 995, 996-97 (9th Cir. 2014).
AFFIRMED.
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