United States v. Merrill Gardner , 695 F. App'x 262 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30183
Plaintiff-Appellee, D.C. No. 1:15-cr-00073-SPW
v.
MEMORANDUM*
MERRILL CLARK GARDNER, a.k.a.
Clark Gardner,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
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.
*
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).
Gardner contends that the district court erred by applying a four-level
aggravating role enhancement under U.S.S.G. § 3B1.1(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 presentence 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.
2 16-30183