United States v. Jose Bautista

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 17, 2018
• Docket: 17-10327
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10327

Plaintiff - Appellee, D.C. No. 3:16-cr-00003-TEH-1

v.

JOSE VASQUEZ BAUTISTA, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court for the District of Northern California Thelton E. Henderson, Senior District Judge, Presiding

Submitted October 10, 2018** San Francisco, California

Before: MURGUIA and FRIEDLAND, Circuit Judges, and HINKLE,*** District Judge.

Jose Bautista was convicted of possession with intent to distribute

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Bautista

* 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 Robert L. Hinkle, United States District Judge for the Northern District of Florida, sitting by designation. appeals his 120-month sentence, arguing that the district court misapplied the

Sentencing Guidelines and made various erroneous factual findings. We generally

review a district court’s application of the Sentencing Guidelines to the facts of a

given case for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167,

1170 (9th Cir. 2017) (en banc). However, we review the district court’s factual

findings for clear error. Id. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. Bautista argues that the district court incorrectly calculated the quantity

of drugs involved in the offense because, in addition to drugs Bautista had with him

at the time of arrest, the district court also included drugs that were found in a

methamphetamine conversion laboratory (the “meth lab”) immediately adjacent to

Bautista’s place of business. We find no abuse of discretion. Law enforcement

officers gained access to the meth lab using a key they obtained from Bautista at the

time of his arrest; Bautista paid half the rent on the facility; and Bautista admitted

he took about 50 orders to sell methamphetamine produced at the facility. The

district court was permitted to consider the drugs found at the meth lab even though

they were not specified in the count of conviction because they were part of the

relevant conduct. See United States v. Mercado-Moreno, 869 F.3d 942, 959 (9th Cir.

2017); U.S. Sentencing Guidelines Manual §§ 1B1.3(a)(1)(A), 2D1.1 cmt. n.5 (U.S.

Sentencing Comm’n 2016) (hereinafter “U.S.S.G.”).

2 17-10327 2. Next, Bautista argues that the district court lacked a basis for imposing

a two-level enhancement for possessing a firearm during the offense under U.S.S.G.

§ 2D1.1(b)(1). Bautista argues that because the weapons were found at his place of

business, as opposed to the meth lab, the district court lacked a basis for imposing

the enhancement. We find no clear error on this record, where Bautista stored the

weapons in a drawer at his place of business immediately adjacent to the meth lab

and the district court found that Bautista kept the weapons there for use in the drug

operation. See U.S.S.G. § 2D1.1(b)(1) cmt. n.11(A); United States v. Ferryman, 444

F.3d 1183, 1186 (9th Cir. 2006); United States v. Willard, 919 F.2d 606, 609–10

(9th Cir. 1990). Moreover, any error would be harmless because Bautista was

sentenced to a mandatory minimum that applied irrespective of the firearm

enhancement.

3. We reject Bautista’s argument that the district court erred in denying

him safety valve relief under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2. Regardless

of whether Bautista possessed a firearm in connection with the offense, the district

court independently found Bautista ineligible for safety valve relief because Bautista

had not truthfully provided the government with all information regarding the

offense by the time of his sentencing. The district court did not clearly err in making

this determination. See United States v. Miller, 151 F.3d 957, 961 (9th Cir. 1998)

(“[A] defendant has to disclose all that he knows about offenses, including relevant

3 17-10327 conduct, that are part of the same course of conduct or common scheme as the

offense for which he was convicted, in order to qualify for the ‘safety valve’ under

18 U.S.C. § 3553(f).”).

4. Finally, Bautista contests the district court’s refusal to depart downward

from the guideline range pursuant to U.S.S.G. § 5H1.6 based on familial

circumstances. Under any standard of review, the district court’s decision stands.

Bautista’s arguments—that he was the main financial supporter for his family and

had a close relationship with his family—are not the type of “extraordinary”

circumstances that might support a downward departure. See United States v. Leon,

341 F.3d 928, 931–32 (9th Cir. 2003).

AFFIRMED.

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