NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10439
Plaintiff - Appellee, D.C. No. 1:12-cr-01259-DKW-2
v.
MEMORANDUM & ORDER*
DAVID STEIDELL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted February 11, 2016**
University of Hawaii Manoa, Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Defendant David Steidell pleaded guilty to one count of conspiracy to
distribute ecstacy; one count of conspiracy to distribute and possess with intent to
distribute 50 grams or more of methamphetamine; one count of distribution of 50
*
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).
grams or more of methamphetamine; and one count of possession with intent to
distribute ecstacy. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(A), 846.
The district court sentenced him to 170 months’ imprisonment. Steidell appeals
his sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the
sentence.1
(1) The district court did not plainly err when it failed to adjust Steidell’s
base offense level due to sentencing entrapment. Steidell has not shown that he
lacked both the “intent and capability to produce” 50 grams of methamphetamine.
See United States v. Biao Huang, 687 F.3d 1197, 1200 (9th Cir. 2012). To the
contrary, in his change of plea hearing, Steidell admitted to facilitating a sale that
involved four ounces (approximately 113 grams) of methamphetamine. During the
hearing, Steidell recalled telling an undercover officer he “could get him anything
he wanted” on the same day Steidell negotiated the methamphetamine sale. These
admissions show Steidell conceived of and participated in a plan to sell more than
50 grams of methamphetamine. They do not support the defense of sentencing
entrapment.
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Steidell’s motion to supplement the record with evidence of his state
plea agreement is GRANTED.
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(2) We also reject Steidell’s claim that the district court incorrectly
calculated his U.S. Sentencing Guidelines range. First, the record shows that
Steidell coordinated the activities of other participants in this drug distribution
scheme, so application of § 3B1.1(c)’s two-point aggravating role enhancement
was proper. U.S.S.G. § 3B1.1(c); see United States v. Christensen, 801 F.3d 970,
1020 (9th Cir. 2015) (affirming application of the enhancement when Christensen
directed the activities of his co-defendant and gave his co-defendant assignments).
Second, the district court resolved Steidell’s objections to his presentence report
before finally determining his sentence. Third, the record amply supports the
district court’s finding that Steidell was responsible for 34.1 grams of MDMA;
3,999.2 grams of BZP; and 110.9 grams of methamphetamine.
(3) Finally, Steidell claims that his sentence was substantively unreasonable
because he received a longer sentence than his co-defendant. This disparity is not
a ground for reversal because Steidell’s co-defendant cooperated with the
government and had no criminal history, but Steidell did not cooperate with the
government and had a substantial criminal history. See United States v. Laurienti,
731 F.3d 967, 976 (9th Cir. 2013) (affirming sentence even though co-defendant
received a significantly shorter sentence because co-defendant “cooperated with
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the government’s investigation”). Steidell’s sentence, which fell in the middle of
the applicable Guidelines range, was substantively reasonable. See id.
AFFIRMED.
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