FILED
NOT FOR PUBLICATION
OCT 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30217
Plaintiff-Appellee, D.C. No. 3:14-cr-00275-JO-1
v.
MEMORANDUM*
MARK DOUGLAS GILL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Submitted October 6, 2017**
Portland, Oregon
Before: PAEZ and BEA, Circuit Judges, and ANELLO,*** District Judge.
Mark Gill appeals the district court’s 97-month sentence. We affirm.
*
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 Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
The district court’s determination of drug quantity is a factual issue reviewed
for clear error. See United States v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008).
The district court did not err when it declined to consider the lab report’s
margin of error on the amount of methamphetamine seized from Gill’s house. The
forensic laboratory weighed the seized drugs and determined that the mixture
consisted of 35.89 grams of actual or pure methamphetamine with a margin of
error of 3.28 grams. Absent evidence challenging the reliability of the lab report,
which Gill did not present, the district court was well within its discretion to
calculate Gill’s base offense level based on 35.89 grams of actual
methamphetamine seized.
Gill’s reliance on United States v. Culps, 300 F.3d 1069 (9th Cir. 2002), and
United States v. Scheele, 231 F.3d 492 (9th Cir. 2000), is misplaced. We have
required district courts to consider the margin of error only when “a drug quantity
is arrived at in a manner that is inherently imprecise,” such as when there is an
approximation of unseized drugs. Scheele, 231 F.3d at 499. There is nothing
inherently imprecise about a lab report’s analysis of seized drugs.
AFFIRMED.
2