United States v. Rodney Cremer

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2018
• Docket: 17-10222
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 17-10222

Plaintiff-Appellee, D.C. No. 1:15-cr-00634-LEK-1

v. MEMORANDUM* RODNEY CHRISTIAN GEORGE CREMER,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges

Rodney Christian George Cremer challenges the 150-month sentence

following his guilty-plea conviction for conspiracy to distribute and possess with

intent to distribute methamphetamine, attempt to possess methamphetamine with

* 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). intent to distribute, and possession of methamphetamine with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and structuring transactions

to evade reporting requirements, in violation of 31 U.S.C. § 5324(a)(3), (d)(1). We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Cremer contends that there was insufficient evidence to support the district

court’s imposition of a four-level enhancement on the drug charges and a two-level

enhancement on the structuring charges for his aggravating role in the offenses

under U.S.S.G. § 3B1.1. He also argues that the district court erred by imposing

both enhancements. A district court’s application of the Guidelines to the facts of

a case is reviewed for abuse of discretion, and its underlying factual findings are

reviewed for clear error. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170

(9th Cir. 2017) (en banc).

The district court did not abuse its discretion by imposing the four-level

enhancement because the record reflected that Cremer was a primary source of

supply for large methamphetamine distributors, and specifically directed others to

help obtain and distribute that methamphetamine. See U.S.S.G. § 3B1.1 cmt. n.4;

United States v. Ingham, 486 F.3d 1068, 1075 (9th Cir. 2007) (applying four-level

enhancement when defendant’s role is “that of organizing or leading a drug

distribution conspiracy”). Nor did the district court err in relying on Cremer’s co-

2 17-10222 conspirators’ statements in the presentence report regarding his role because the

statements were consistent with each other and supported by other evidence in the

record. See Ingham, 486 F.3d at 1076 (“[H]earsay is admissible at sentencing, so

long as it is accompanied by some miminal indicia of reliability.”). Moreover, the

district court satisfied its obligations under Federal Rule of Criminal Procedure 32

in ruling on Cremer’s objection to the enhancement. See id. at 1075–76.

The district court also properly imposed the two-level enhancement for the

structuring charges because the record showed that Cremer directed his romantic

partner to deposit drug-dealing proceeds into his bank account. See United States

v. Beltran, 165 F.3d 1266, 1271 (9th Cir. 1999) (upholding § 3B1.1(c)

enhancement based on single instance of directing two individuals to pick up

methamphetamine from defendant’s residence). Moreover, the district court did

not err in imposing both the two-level enhancement and the four-level

enhancement because the two enhancements applied to different conduct and

reflected distinct harms. See United States v. Martin, 278 F.3d 988, 1005 (9th Cir.

2002). In any event, any error with respect to the two-level enhancement was

harmless because it did not affect the Guidelines range. See United States v.

Seljan, 547 F.3d 993, 1007 (9th Cir. 2008) (en banc).

AFFIRMED.

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