United States v. Jason Obermiller ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30168
Plaintiff-Appellee, D.C. No.
2:16-cr-00167-TOR-2
v.
JASON JOEL OBERMILLER, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-30170
Plaintiff-Appellee, D.C. No.
2:14-cr-00168-TOR-26
v.
JASON JOEL OBERMILLER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted November 8, 2019**
Seattle, Washington
*
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).
Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,*** District
Judge.
After pleading guilty to one count of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii) and 846
and one count of distribution of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(viii), Jason Obermiller was sentenced to 90 months of
imprisonment. In a companion case, he was sentenced by the same judge to a
consecutive sentence of 36 months of imprisonment for violating the terms of his
supervised release on an earlier conviction.1 He appeals from those sentences, and
he also appeals the district court’s refusal to disqualify one of the prosecutors
assigned to the methamphetamine case. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
1. Prior to his pleas in the methamphetamine case, Obermiller had been
acquitted of murder in state court. The husband of one of the prosecutors in
Obermiller’s methamphetamine case testified as an expert witness during the state
murder trial. Obermiller sought to have the prosecutor disqualified, but the only
evidence he could point to for doing so was the existence of the marriage. Standing
***
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
1
The Sentencing Guidelines ranges for those sentences were 77-96 months and 30-
36 months, respectively.
2 18-30168
alone, the fact that a prosecutor is married to an expert witness in an unrelated case
involving the same defendant does not give rise to any sort of conflict that might
warrant disqualification. The district court did not abuse its discretion in denying
the motion to disqualify.
2. Obermiller also contends that his 126-month combined sentence is
excessive when compared to the sentences given to the other participants in the
conspiracy. 18 U.S.C. § 3553(a)(6). But he ignores the other sentencing factors as
well as significant distinctions between his circumstances and those of the other
defendants. These distinctions include his more extensive criminal history, his
failure to take advantage of a previous “second chance” provided by the same
judge, and his lack of cooperation with the Government. The district court did not
abuse its discretion in imposing a reasonable sentence just below the top of the
Sentencing Guidelines range.
3. Finally, Obermiller argues that he was the victim of prosecutorial
vindictiveness, but he provided no evidence of it. The district court did not err in
rejecting this argument.
AFFIRMED.
3 18-30168