NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10198
Plaintiff-Appellee, D.C. No. 2:15-cr-00081-JAM-2 v.
GORDON OWEN MILLER, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10268
Plaintiff-Appellee, D.C. No. 2:15-cr-00081-JAM-1 v.
DONNIE JOE PHILLIPS,
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Argued and Submitted February 11, 2021 San Francisco, California
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,** District Judge.
Phyllis Mosher, Gordon Miller, and Donnie Phillips were charged in a twelve-
count indictment with conspiracy to distribute methamphetamine, distributing
methamphetamine, and possessing methamphetamine with intent to distribute.
Mosher entered into a plea agreement; Miller and Phillips proceeded to trial. After
a seven-day trial, a jury returned guilty verdicts on all twelve counts against Phillips.
The jury found Miller guilty of conspiring to distribute methamphetamine, two
distribution counts on February 4, 2015, and two counts of possessing
methamphetamine with intent to distribute on April 7, 2015. Miller received a
sentence of 240 months. Phillips was sentenced to 300 months.
Miller and Phillips have each timely appealed. We have jurisdiction under 28
U.S.C. § 1291 and affirm.
I. Challenges to Convictions
A. Miller’s Challenges
1. Miller asserts that the evidence is insufficient to sustain any count of
conviction. But, viewing the evidence in the light most favorable to the government,
a rational juror could reasonably have concluded beyond a reasonable doubt that
** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation.
2 Miller participated in a methamphetamine trafficking ring and distributed
methamphetamine on February 4, 2015. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009). Testimony,
surveillance, and telephone records revealed Phillips to be the source for
methamphetamine sold by Mosher to an undercover DEA agent. During a
transaction with the undercover agent on February 4, 2015, Mosher explained that a
second delivery of drugs agreed upon for that day would be delayed because her
source’s partner was in Hayward. Miller purchased a car in Hayward that day. Later
that day, Mosher told the agent that she was with her source, who could not obtain
the methamphetamine from his partner until that evening. Agents subsequently
observed Phillips place a bag of money given by the agent to Mosher into the trunk
of his car and followed him to a bar, where Phillips met with Miller. From there,
Miller and Phillips drove to an isolated area, where they interacted briefly with the
occupant of another car before returning to the bar. Around that time, Mosher called
the agent to inform him that her source had the drugs and she was going to meet him
in Vallejo. When Phillips left the bar, he travelled to a Vallejo apartment, where he
removed items from his car and met with Mosher. Mosher delivered
methamphetamine to the agent later that evening. There was also extensive phone
activity between Miller’s and Phillips’s phones on February 4, 2015.
2. The evidence also was sufficient to support Miller’s convictions for
3 possession with intent to distribute methamphetamine on April 7, 2015. Mosher
and Phillips were arrested promptly after a sale to the DEA agent on that day.
Miller, who had been in regular telephone contact with Phillips in the days before
April 7, then frantically sought information on Phillips’s whereabouts and asked
Phillips’s girlfriend for Mosher’s phone number; Miller had no apparent connection
with Mosher outside the conspiracy. Miller then fled with his girlfriend at a high
rate of speed in his girlfriend’s car with large amounts of cash concealed in a spare
tire and while carrying a note with Mosher’s first name and contact information.
See United States v. Harris, 792 F.2d 866, 869 (9th Cir. 1986) (“Evidence of flight
is generally admissible as evidence of consciousness of guilt and of guilt itself.”).
Overlapping layers of evidence thus supported a reasonable inference that Miller
was involved in the April 7 sale. See United States v. Nevils, 598 F.3d 1158, 1167
(9th Cir. 2010).
3. The district court did not abuse its discretion in admitting evidence of Miller’s
three trips to Mexico in 2014. Miller reported only $1,653 in income in 2014.
“[E]vidence of a disparity between income and life style permits an inference of drug
trafficking activity.” United States v. Karterman, 60 F.3d 576, 582 (9th Cir. 1995).
4. Any error in the admission of a baseball hat recovered from Miller’s car with
the logo “red and white Oakland”—an apparent nickname for Hells Angels—was
harmless. There was no mention of Hells Angels at trial, nor any other evidence
4 from which the jury would infer membership in the group. There is a “fair
assurance” that the hat’s admission had no “substantial influence” on the verdict.
United States v. Webbe, 755 F.2d 1387, 1389 (9th Cir. 1985) (cleaned up).
B. Phillips’s Challenges
The district court properly rejected Phillips’s requested third-party entrapment
defense, which was premised on alleged entrapment by Mosher as an “unwitting
middleman.” We have “consistently held that the entrapment defense is available
only to defendants who were directly induced by government agents.” United States
v. North, 746 F.2d 627, 630 (9th Cir. 1984) (emphasis added). Targeting a defendant
through an “unwitting agent” does not constitute forbidden inducement if the agent
was not then cooperating with the government. See United States v. Emmert, 829
F.2d 805, 809 (9th Cir. 1987).
C. Joint Challenges
1. Miller and Phillips claim the prosecutor’s comments at a status conference in
Mosher’s case seeking continuation of sentencing to ensure the government’s
continued leverage under the plea agreement violated their due process and
compulsory process rights to offer testimony in their favor. Mosher, however, was
ultimately sentenced before Miller and Phillips’s trial, and there is no evidence that
the prosecutor’s comments caused her not to testify. See Soo Park v. Thompson, 851
5 F.3d 910, 919 (9th Cir. 2017).
2. The district court did not abuse its discretion in concluding, after an in camera
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10198
Plaintiff-Appellee, D.C. No. 2:15-cr-00081-JAM-2 v.
GORDON OWEN MILLER, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10268
Plaintiff-Appellee, D.C. No. 2:15-cr-00081-JAM-1 v.
DONNIE JOE PHILLIPS,
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Argued and Submitted February 11, 2021 San Francisco, California
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,** District Judge.
Phyllis Mosher, Gordon Miller, and Donnie Phillips were charged in a twelve-
count indictment with conspiracy to distribute methamphetamine, distributing
methamphetamine, and possessing methamphetamine with intent to distribute.
Mosher entered into a plea agreement; Miller and Phillips proceeded to trial. After
a seven-day trial, a jury returned guilty verdicts on all twelve counts against Phillips.
The jury found Miller guilty of conspiring to distribute methamphetamine, two
distribution counts on February 4, 2015, and two counts of possessing
methamphetamine with intent to distribute on April 7, 2015. Miller received a
sentence of 240 months. Phillips was sentenced to 300 months.
Miller and Phillips have each timely appealed. We have jurisdiction under 28
U.S.C. § 1291 and affirm.
I. Challenges to Convictions
A. Miller’s Challenges
1. Miller asserts that the evidence is insufficient to sustain any count of
conviction. But, viewing the evidence in the light most favorable to the government,
a rational juror could reasonably have concluded beyond a reasonable doubt that
** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation.
2 Miller participated in a methamphetamine trafficking ring and distributed
methamphetamine on February 4, 2015. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009). Testimony,
surveillance, and telephone records revealed Phillips to be the source for
methamphetamine sold by Mosher to an undercover DEA agent. During a
transaction with the undercover agent on February 4, 2015, Mosher explained that a
second delivery of drugs agreed upon for that day would be delayed because her
source’s partner was in Hayward. Miller purchased a car in Hayward that day. Later
that day, Mosher told the agent that she was with her source, who could not obtain
the methamphetamine from his partner until that evening. Agents subsequently
observed Phillips place a bag of money given by the agent to Mosher into the trunk
of his car and followed him to a bar, where Phillips met with Miller. From there,
Miller and Phillips drove to an isolated area, where they interacted briefly with the
occupant of another car before returning to the bar. Around that time, Mosher called
the agent to inform him that her source had the drugs and she was going to meet him
in Vallejo. When Phillips left the bar, he travelled to a Vallejo apartment, where he
removed items from his car and met with Mosher. Mosher delivered
methamphetamine to the agent later that evening. There was also extensive phone
activity between Miller’s and Phillips’s phones on February 4, 2015.
2. The evidence also was sufficient to support Miller’s convictions for
3 possession with intent to distribute methamphetamine on April 7, 2015. Mosher
and Phillips were arrested promptly after a sale to the DEA agent on that day.
Miller, who had been in regular telephone contact with Phillips in the days before
April 7, then frantically sought information on Phillips’s whereabouts and asked
Phillips’s girlfriend for Mosher’s phone number; Miller had no apparent connection
with Mosher outside the conspiracy. Miller then fled with his girlfriend at a high
rate of speed in his girlfriend’s car with large amounts of cash concealed in a spare
tire and while carrying a note with Mosher’s first name and contact information.
See United States v. Harris, 792 F.2d 866, 869 (9th Cir. 1986) (“Evidence of flight
is generally admissible as evidence of consciousness of guilt and of guilt itself.”).
Overlapping layers of evidence thus supported a reasonable inference that Miller
was involved in the April 7 sale. See United States v. Nevils, 598 F.3d 1158, 1167
(9th Cir. 2010).
3. The district court did not abuse its discretion in admitting evidence of Miller’s
three trips to Mexico in 2014. Miller reported only $1,653 in income in 2014.
“[E]vidence of a disparity between income and life style permits an inference of drug
trafficking activity.” United States v. Karterman, 60 F.3d 576, 582 (9th Cir. 1995).
4. Any error in the admission of a baseball hat recovered from Miller’s car with
the logo “red and white Oakland”—an apparent nickname for Hells Angels—was
harmless. There was no mention of Hells Angels at trial, nor any other evidence
4 from which the jury would infer membership in the group. There is a “fair
assurance” that the hat’s admission had no “substantial influence” on the verdict.
United States v. Webbe, 755 F.2d 1387, 1389 (9th Cir. 1985) (cleaned up).
B. Phillips’s Challenges
The district court properly rejected Phillips’s requested third-party entrapment
defense, which was premised on alleged entrapment by Mosher as an “unwitting
middleman.” We have “consistently held that the entrapment defense is available
only to defendants who were directly induced by government agents.” United States
v. North, 746 F.2d 627, 630 (9th Cir. 1984) (emphasis added). Targeting a defendant
through an “unwitting agent” does not constitute forbidden inducement if the agent
was not then cooperating with the government. See United States v. Emmert, 829
F.2d 805, 809 (9th Cir. 1987).
C. Joint Challenges
1. Miller and Phillips claim the prosecutor’s comments at a status conference in
Mosher’s case seeking continuation of sentencing to ensure the government’s
continued leverage under the plea agreement violated their due process and
compulsory process rights to offer testimony in their favor. Mosher, however, was
ultimately sentenced before Miller and Phillips’s trial, and there is no evidence that
the prosecutor’s comments caused her not to testify. See Soo Park v. Thompson, 851
5 F.3d 910, 919 (9th Cir. 2017).
2. The district court did not abuse its discretion in concluding, after an in camera
review, that material related to a personnel matter involving the undercover DEA
agent need not be disclosed because it did not go to the agent’s character for
truthfulness. See Fed. R. Evid. 608(b).
3. Because any error claimed by Miller or Phillips “is, at best, marginal,” there
was no cumulative error here. See Karterman, 60 F.3d at 580.
II. Sentencing Challenges
Although the district court failed to “verify that [Miller] and [his] attorney
ha[d] read and discussed the presentence report,” Fed. R. Crim. P. 32(i)(1)(A), any
error was harmless, as Miller has not claimed that he did not read and discuss the
report with his counsel, nor has he identified any fact in the report he disputes. See
United States v. Soltero, 510 F.3d 858, 863-64 (9th Cir. 2007).
1. The district court did not err in declining to give Phillips a two-level reduction
for acceptance of responsibility pursuant to U.S.S.G § 3E1.1. Phillips argues that
the district court relied on the government’s erroneous representation that he never
6 tried to plead guilty, when in fact he made plea offers that were rejected. Even
assuming that the government misstated that fact at sentencing, there is no indication
that the district court based its decision on any such misstatement. The district court
was not compelled to conclude that this was one of the “rare situations” in which a
defendant “clearly demonstrate[d] an acceptance of responsibility . . . even though
he exercise[d] his constitutional right to a trial.” U.S.S.G. § 3E1.1(a), cmt. 2; see
also United States v. Molina, 934 F.2d 1440, 1451 (9th Cir. 1991) (requiring that a
sentencing judge’s decision to apply an acceptance-of-responsibility reduction be
“based upon the entire record”).
2. The district court did not plainly err in rejecting Phillips’s argument for a four-
level downward variance based on a methamphetamine purity ratio different from
the ratio set forth in U.S.S.G. § 2D1.1. “[D]istrict courts are not obligated to vary
from the . . . Guidelines on policy grounds if they do not have, in fact, a policy
disagreement with them.” United States v. Henderson, 649 F.3d 955, 964 (9th Cir.
2011). The court “considered all the objections” and did not “find any reason to
change any of the calculations with respect . . . to the guidelines or to grant any of
the other corrections that have been requested.” See id.; see also Rita v. United
States, 551 U.S. 338, 356 (2007).
3. Nor did the district court clearly err in applying a two-level firearm
enhancement. Section 2D1.1(b)(1) requires a two-level increase “[i]f a dangerous
7 weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “The
enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” Id. § 2D1.1, cmt.
11(a). Evidence suggested that Phillips used the property from which the firearm
was seized as a base of operations during the conspiracy. See United States v.
Willard, 919 F.2d 606, 609-10 (9th Cir. 1990).
4. Phillips’s overbreadth challenge to his career offender designation is
foreclosed by United States v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020).
5. Phillips’s sentence was not substantively unreasonable. The record reflects a
“rational and meaningful consideration of the factors enumerated in 18 U.S.C.
§ 3553(a).” United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (cleaned
up). After noting that the Guidelines range was only “advisory,” the district
evaluated the relevant § 3553(a) factors, including the potential disparity with
Miller’s sentence. Even assuming that Miller was higher in the conspiracy’s
hierarchy than Phillips, that does not compel a finding of substantive
unreasonableness, as Miller was convicted on fewer offenses. See United States v.
Monroe, 943 F.2d 1007, 1017 (9th Cir. 1991).
6. Phillips’s argument that the prior convictions that gave rise to an enhanced
statutory minimum were required to be proven to the jury fails under Almendarez-
Torres v. United States, 523 U.S. 224 (1998), which remains binding, see, e.g.,
8 United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005).
1. Miller and Phillips were not entitled to invoke § 401 of the First Step Act,
Pub. L. No. 155-391, 132 Stat. 5194 (2018), which does not apply to sentences
imposed before its enactment. See United States v. Asuncion, 974 F.3d 929, 934 (9th
Cir. 2020).
2. Miller and Phillips have not shown plain error in the imposition of seven
conditions of supervised release. During their respective sentencing hearings, the
district court stated it was adopting all seven special conditions of supervised release.
The written judgments conformed to the oral pronouncements for both defendants.
See United States v. Jones, 696 F.3d 932, 938 (9th Cir. 2012).
AFFIRMED.