FILED
NOT FOR PUBLICATION SEP 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50533
Plaintiff - Appellee, D.C. No. 2:07-cr-01198-GHK-1
ANTHONY WASHINGTON,
MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Submitted September 1, 2011**
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Anthony Washington appeals from his conviction and sentence for being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); possession
with intent to distribute cocaine base in the form of crack cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); and possession of a firearm in
*
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).
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we
affirm.
Washington has not demonstrated that the district court clearly erred in
crediting Sergeant Mkrtchyan’s testimony that he saw Washington without his
seatbelt as the vehicle in which Washington was a passenger pulled off the street
and into a gas station. See United States v. Craighead, 539 F.3d 1073, 1082 (9th
Cir. 2008) (giving “special deference” to the district court’s credibility findings).
Accordingly, the district court did not err in denying Washington’s motion to
suppress on the ground that the arresting officers had reasonable suspicion to
conduct the traffic stop of the vehicle, because the record does not support a
definite and firm conviction that the officers lacked reasonable suspicion that a
traffic violation had occurred. See United States v. Choudhry, 461 F.3d 1097,
1100 (9th Cir. 2006) (reasonable suspicion standard applies to traffic stops).
Washington’s theory of defense was premised on an effort to impeach
Sergeant Mkrtchyan, who testified on cross-examination that he was not aware of
sentencing enhancements for crack cocaine offenses under § 11351.5 of the
California Health and Safety Code. The defense called no witnesses and
introduced no other evidence that could support an inference that Sergeant
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Mkrtchyan was, or should have been, aware of the state sentencing provisions. See
United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990) (“A defendant is
entitled to have the judge instruct the jury on his theory of defense, provided that it
is supported by law and has some foundation in the evidence.”). Washington
failed to adduce evidence that would render the instruction relevant to his actual
theory of defense, which was adequately covered by the jury instructions on the
burden of proof and the credibility of witnesses. Accordingly, the district court did
not abuse its discretion in declining to instruct the jury regarding sentencing
enhancements for crack cocaine offenses under California law.
Finally, the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372
(2010) (codified as amended in scattered sections of title 21 of the United States
Code), does not apply retroactively to Washington. United States v. Baptist, --
F.3d --, No 09-50315, 2011 WL 2150993 (9th Cir. June 2, 2011) (per curiam). The
disparity between crack and powder cocaine sentencing does not implicate equal
protection or the prohibition on cruel and unusual punishment. Id. at *3 (citing
United States v. Dumas, 64 F.3d 1427, 1429-32 (9th Cir. 1995); United States v.
Harding, 971 F.2d 410, 412-14 (9th Cir. 1992); and United States v. Hoyt, 879
F.2d 505, 512-14 (9th Cir. 1989)).
AFFIRMED.
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