United States v. Dennis McPherson

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 14, 2020
• Docket: 19-10024
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10024

Plaintiff-Appellee, D.C. No. 2:15-cr-00266-RCJ-VCF-1 v.

DENNIS McPHERSON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Robert C. Jones, District Judge, Presiding

Submitted April 7, 2020**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

Dennis McPherson appeals from the district court’s judgment and challenges

the 76-month sentence and one condition of supervised release imposed following

his guilty-plea conviction for conspiracy to distribute oxycodone, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. We have jurisdiction under 28 U.S.C.

* 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). § 1291, and we affirm.

McPherson first contends that the district court erred by applying a four-

level aggravating role enhancement pursuant to U.S.S.G. § 3B1.1(a). We review

the district court’s factual findings for clear error and its application of the

Guidelines to the facts for abuse of discretion. See United States v. Gasca-Ruiz,

852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). The district court did not abuse its

discretion in imposing the enhancement because the facts showed that McPherson

was the primary source of supply for the distributors in the conspiracy and that he

collected a larger share of the sales. See U.S.S.G. § 3B1.1 cmt. n.4; United States

v. Ingham, 486 F.3d 1068, 1075-76 (9th Cir. 2007). The record does not support

McPherson’s contention that the district court relied on clearly erroneous facts.

See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010) (“A finding is

clearly erroneous if it is illogical, implausible, or without support in the record.”).

McPherson next contends that the district court procedurally erred by failing

to consider mitigating evidence and respond to his arguments in favor of a lower

sentence. We review for plain error, see United States v. Valencia-Barragan, 608

F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none. The record

reflects the district court considered McPherson’s arguments and the 18 U.S.C.

§ 3553(a) factors, understood its discretion to vary from the Guidelines based on a

policy disagreement, and thoroughly explained its reasons for imposing the within-

2 19-10024 Guidelines sentence, including the nature and seriousness of the offense and the

need to protect the public. See United States v. Carty, 520 F.3d 984, 991-92 (9th

Cir. 2008) (en banc); see also United States v. Perez-Perez, 512 F.3d 514, 516 (9th

Cir. 2008) (sentencing judge need not expressly address every sentencing

argument). Moreover, contrary to McPherson’s contention, the sentence is

substantively reasonable in light of the § 3553(a) factors and totality of the

circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).

Lastly, McPherson argues that the condition of supervised release that

permits the probation officer to require him to notify people and organizations to

whom probation determines he poses a risk is unconstitutionally vague. We are

not persuaded. The condition mirrors the amended language of U.S.S.G.

§ 5D1.3(c)(12), and does not include the language we found to be

unconstitutionally vague in United States v. Evans, 883 F.3d 1154, 1163-64 (9th

Cir.), cert. denied, 139 S. Ct. 133 (2018) (discussing with approval the amended

language of U.S.S.G. § 5D1.3(c)(12)). Moreover, the district court’s reasons for

imposing the condition are apparent from the record. See United States v.

Blinkinsop, 606 F.3d 1110, 1119 (9th Cir. 2010).

AFFIRMED.

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