NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30239
Plaintiff-Appellee, D.C. No.
1:17-cr-00122-SPW-1
v.
MICHAEL CHAVEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted October 7, 2020**
Seattle, Washington
Before: GRABER and W. FLETCHER, Circuit Judges, and FREUDENTHAL,***
District Judge.
Defendant Michael Chavez appeals his criminal sentence of ninety-six
months’ imprisonment for possession with intent to distribute, and distribution of,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
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a methamphetamine mixture in violation of 21 U.S.C. § 841(a)(1). We affirm.
1. The district court did not clearly err in finding that Chavez was
responsible for 2408 kilograms of aggregated, converted drug weight. See United
States v. Hahn, 960 F.2d 903, 907 (9th Cir. 1992) (stating that we review for clear
error “[w]hether conduct extraneous to an offense of conviction is part of the same
‘course of conduct’ . . . as the offense of conviction so as to be considered ‘relevant
conduct’”). Each drug amount was from the indicted time period (April 2014 until
September 2016) or Chavez’s arrest in this case. The district court did not err in
attributing all of these amounts to Chavez as the same course of conduct. See, e.g.,
U.S. Sentencing Guidelines Manual (“U.S.S.G.”) §§ 1B1.1, 1B1.3(a)(1)–(2),
3D1.2(d). To the extent that Chavez argued to the district court that a small
portion of the attributed drugs were for personal use, the district court did not
clearly err in finding otherwise.
2. The district court did not abuse its discretion in denying Chavez a “minor
participant” reduction under the Guidelines. See U.S.S.G. § 3B1.2(b); United
States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc) (holding that
we review for abuse of discretion a district court’s application of the Guidelines to
a case’s facts). Such a reduction would have required Chavez to argue to the
district court that his culpability was less than the culpability of another specific
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person involved in the offense. U.S.S.G. § 3B1.2(b), cmt. n.2; United States v.
Kipp, 10 F.3d 1463, 1467–68 (9th Cir. 1993). Chavez failed to do so.
3. The district court did not clearly err by finding that Chavez was under a
criminal sentence at the time of his offense and, thus, applying a two-point increase
to his criminal history score. See United States v. Stoterau, 524 F.3d 988, 997 (9th
Cir. 2008) (citing United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005))
(stating that we review for clear error a district court’s factual findings). The
district court found, based on the presentence investigation report, that Chavez
received a six-month probationary sentence in February 2014 after he violated the
conditions of his suspended custodial sentence. The offense of conviction here
began in April 2014.
4. Finally, the district court did not abuse its discretion in sentencing Chavez
to ninety-six months’ imprisonment. See Gall v. United States, 552 U.S. 38, 51
(2007) (holding that the courts of appeals review for abuse of discretion the
substantive reasonableness of a district court’s sentence). Chavez’s sentence
reasonably reflects the totality of the circumstances, including a significant
downward variance for his age and health problems.
AFFIRMED.
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