United States v. Rodney Cremer ( 2018 )

NOT FOR PUBLICATION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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