United States v. Bird

44 F. App'x 867

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 19, 2002
• Docket: No. 00-30001; D.C. No. CR-99-00031-005
• Status: Published

Opinion

MEMORANDUM

**

Melissa Leigh Bird appeals the 97-month sentence imposed following her conviction by guilty plea for one count of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1) and 21 U.S.C. § 846; one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841; and one count of use of a hand gun in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). We have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.

Bird contends that the district court committed error by including her juvenile convictions in its calculation of her criminal history score. Specifically, Bird argues that inclusion of her juvenile convictions violates the Sentencing Commission’s statutory directive to remove sentencing disparity pursuant to 28 U.S.C. § 991(b)(1)(B). Because this objection was not raised before the sentencing court, we review for plain error, see United States v. Payne, 944 F.2d 1458, 1463 (9th Cir.1991), and find none.

For each of the drug trafficking counts to which she pleaded guilty, Bird was exposed to a 120 month minimum sentence. Because the district court departed downward and sentenced Bird to only 37 months for each drug trafficking violation, well below the guideline range even for a defendant with a criminal history score of I, Bird cannot show that her substantial rights were affected by the district court’s calculation of her criminal history score. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.