United States v. Phosavan Khamnivong

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2022
• Docket: 21-30067
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30067

Plaintiff-Appellee, D.C. No. 3:13-cr-00092-RRB-2 v.

PHOSAVAN KHAMNIVONG, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding

Submitted August 10, 2022** Anchorage, Alaska

Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges.

Phosavan Khamnivong appeals the district court’s order sentencing him to

720 months of imprisonment followed by ten years of supervised release. We

review the “district court’s interpretations of the federal Sentencing Guidelines de

novo, its factual determinations for clear error, and its application of the

* 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). Sentencing Guidelines to the facts as it has found them for abuse of discretion.”

United States v. Rising Sun, 522 F.3d 989, 993 (9th Cir. 2008). We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.

The district court did not violate Khamnivong’s right to a jury trial by

applying sentencing guideline enhancements based on judge-found facts. As

Khamnivong acknowledges, we have held in the sentencing context that “judicial

consideration of facts and circumstances beyond those found by a jury or admitted

by the defendant does not violate the Sixth Amendment right to jury trial” so long

as the facts do not increase the defendant’s statutory maximum sentence. United

States v. Treadwell, 593 F.3d 990, 1017 (9th Cir. 2010), overruled on other

grounds by United States v. Miller, 953 F.3d 1095 (9th Cir. 2020). Contrary to

Khamnivong’s contentions, Treadwell controls because it is not “clearly

irreconcilable” with intervening higher authority. Miller v. Gammie, 335 F.3d 889,

900 (9th Cir. 2003) (en banc).

Assuming without deciding that the district court erred in applying a two-

level dangerous weapon enhancement and a two-level threat enhancement, any

error was harmless because it did not alter Khamnivong’s recommended guideline

range under the Sentencing Guidelines. See United States v. Cruz-Gramajo, 570

F.3d 1162, 1174 (9th Cir. 2009).

AFFIRMED.