United States v. Jeremy Donagal

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2022
• Docket: 21-10169
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10169

Plaintiff-Appellee, D.C. Nos. 4:20-cr-00250-JST-1 v. 4:20-cr-00250-JST

JEREMY DONAGAL, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Argued and Submitted May 12, 2022 San Francisco, California

Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges.

Jeremy Donagal appeals from the sentence imposed as a consequence of his

conviction for violating 21 U.S.C. § 843(a)(5), possession of punches or dies for

the purpose of manufacturing counterfeit drugs, and 21 U.S.C. § 331(i)(3), the

doing of any act which caused a drug to be a counterfeit drug. He was sentenced

to concurrent terms of 27 months’ imprisonment for each count, and a consecutive

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 10-month term for violating the conditions of supervised release from a prior drug

conviction.

On appeal, Donagal contends that the district court erred in calculating his

base offense level under U.S. Sentencing Guidelines (USSG) § 2D1.12(a)(1) and

in applying a two-level sentencing enhancement for the supervision of a criminal

participant under USSG § 3B1.1(c). Because Donagal did not object at sentencing,

we review his claims for plain error. United States v. Randall, 162 F.3d 557, 561

(9th Cir. 1998). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Where, as here, a defendant is convicted of a felony for which no sentencing

guideline directly applies, the district court must apply the most analogous

sentencing guideline. See U.S.S.G § 2X5.1. The district court applied USSG §

2D1.12(a)(1), a base offense level pertaining to a defendant who “intended to

manufacture a controlled substance or knew or believed that the prohibited flask,

equipment, chemical, product, or material was to be used to manufacture a

controlled substance.” Donagal contends that the court should have applied the

lesser base offense level under § 2D1.12(a)(2), which requires that a defendant

have “reasonable cause to believe” the prohibited equipment was to be used to

manufacture controlled substances. He argues that because there is no evidence he

intended to manufacture a controlled substance—only a counterfeit substance—it

was plain error for the court to apply the more severe punishment. We disagree.

2 Both USSG §§ 2D1.12(a)(1) and (a)(2) refer to the manufacture of “controlled

substances” and differ only with respect to a defendant’s mental state. The district

court did not plainly err in applying USSG § 2D1.12(a)(1) because an “intent to

manufacture” is more analogous to the circumstances of his case and his plea

admissions.

Donagal also challenges the district court’s adoption of a two-level offense

increase for supervision of a criminal participant. See USSG § 3B1.1(c). Donagal

contends there was no evidence that his employee was aware of the criminal nature

of Donagal’s activities to support imposition of the enhancement. See United

States v. Cyphers, 130 F.3d 1361, 1363 (9th Cir. 1997) (“[U]nknowing facilitators

of crimes will not be considered criminally responsible participants.”). The district

court adopted the factual findings in the Presentence Report without objection, see

Fed. R. Crim. P. 32(i)(3)(A), which stated that Donagal’s employee had assisted in

packaging and shipping counterfeit drugs seized from Donagal’s leased warehouse.

The record reveals a counterfeit drug operation involving an active pill press,

clandestine laboratory, tens of thousands of finished pills stamped with the

commercial label for Xanax, and business cards listing a private site on the darknet

for purchase of these substances. Given the context surrounding the employee’s

workplace environment and the stringent plain error standard of review, we

conclude that the district court did not plainly err in imposing this upward

3 enhancement.

JUDGMENT AFFIRMED.