FILED
NOT FOR PUBLICATION
OCT 16 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30095
Plaintiff - Appellee, D.C. No. 4:13-cr-00020-RRB-1
v.
MEMORANDUM*
ANDREW PAUL NEWMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted August 13, 2015
Anchorage, Alaska
Before: SCHROEDER, RAWLINSON, and MURGUIA, Circuit Judges.
Appellant Andrew Paul Newman (Newman) challenges his sentence based
on his guilty plea to conspiracy to possess with intent to distribute a controlled
substance and possession with intent to distribute a controlled substance.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not clearly err in determining that Newman
participated in the narcotics conspiracy. Emails from a co-conspirator evinced that
the co-conspirator needed the approval of his “boss” to complete the drug
transactions. Consistent with his co-conspirator’s description of the conspiracy,
Newman tracked the methamphetamine delivery, drove his co-conspirator to
retrieve the package, and opened the package containing the agreed upon
controlled substance shipment. See United States v. Reed, 575 F.3d 900, 924 (9th
Cir. 2009) (articulating that the existence of a conspiracy may be demonstrated by
a defendant’s conduct and that “[c]oordination between conspirators is strong
circumstantial proof of agreement”) (citation and alteration omitted). In addition,
expert testimony concerning the modus operandi of narcotics trafficking
organizations was consistent with Newman’s conduct. Newman’s statements
while incarcerated praising the co-conspirator’s loyalty further supported the
district court’s findings that Newman participated in the conspiracy to distribute a
controlled substance. See id.
2. The district court did not plainly err in calculating the drug quantity
based on the amount of methamphetamine involved in the conspiracy. See United
States v. Gadson, 763 F.3d 1189, 1220 (9th Cir. 2014) (“In making an estimate, the
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court may consider, among other factors, the price generally obtained for the
controlled substance, financial or other records, and similar transactions in
controlled substances by the defendant. . . .”) (citation, alteration, and internal
quotation marks omitted).
3. The district court did not clearly err in applying a role enhancement
pursuant to U.S.S.G. § 3B1.1(c). Newman tracked the package containing the
methamphetamine, drove his co-conspirator to the residence to retrieve the
package, and opened the package after it was retrieved. This evidence supported a
finding that Newman had “the necessary influence and ability to coordinate the
behavior of others so as to achieve the desired criminal result.” United States v.
Doe, 778 F.3d 814, 826 (9th Cir. 2015) (citations omitted).
4. The district court did not clearly err in rejecting Newman’s request for
an additional one-point reduction for acceptance of responsibility. See U.S.S.G. §
3E1.1 cmt. n.6 (2013)1 (explaining that the third point for acceptance of
1
The Presentence Report utilized the 2013 guidelines in calculating
Newman’s sentence.
3
responsibility may be granted only upon the filing of a formal motion by the
government).
AFFIRMED.
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