United States v. Merrill Gardner

695 F. App'x 262

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 14, 2017
• Docket: 16-30183
• Status: Unpublished

Opinion

MEMORANDUM **

Merrill Clark Gardner appeals from the district court’s judgment and challenges the 183-month sentence imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Gardner contends that the district court erred by applying a four-level aggravating role enhancement under U.S.S.G. § 3Bl.l(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 when it concluded, based on the undisputed facts in the pre-sentence report and the testimony of Special Agent Robert Grayson, that Gardner acted as a leader or organizer of the conspiracy 'within the meaning of section 3B1.1(a). See United States v. Rivera, 527 F.3d 891, 908-09 (9th Cir. 2008) (enhancement supported where evidence established that defendant exercised control over others and “exercised decision making authority in the procurement and distribution of narcotics”); see also United States v. Garcia, 497 F.3d 964, 970 (9th Cir. 2007) (enhancement “does not require control over all of the five or more participants”).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.