United States v. Dusty Whitehouse ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 05 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 17-30139
Plaintiff-Appellee, D.C. No.
1:15-cr-00147-SPW-3
v.
DUSTY WHITEHOUSE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted August 31, 2018**
Seattle, Washington
Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.
Appellant Dusty Whitehouse (“Whitehouse”) appeals her sentence for
conspiracy to possess with intent to distribute methamphetamine, possession 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 methamphetamine, and distribution of methamphetamine. We
affirm.
The district court did not violate Apprendi 1 or contradict the jury’s findings by
using the guideline sentencing range for pure methamphetamine. The jury was
properly asked to determine the quantity of drugs involved, as this affects the statutory
penalty imposed; here, the jury concluded Whitehouse was responsible for “at least
50 grams” or more of a “substance containing a detectible amount of
methamphetamine.” The only drugs seized in this case tested 98.2% pure, and there
was no contrary evidence submitted that other deliveries involved less pure
substances; it was not clear error for the court to extrapolate that purity to the quantity
found by the jury. United States v. Lopes-Montes, 165 F.3d 730, 732 (9th Cir. 1999)
(“[U]sing the purity of drugs actually seized to estimate the purity of the total quantity
of drugs the defendant agreed to deliver is an appropriate method of establishing the
base [guideline] offense level.”). The district court did not abuse its discretion by
denying Whitehouse’s request for an acceptance of responsibility adjustment.
U.S.S.G § 3E1.1. Although at trial Whitehouse conceded responsibility for Count 3,
she continued to contest elements of the other two counts. It is an exceptional and rare
case where a defendant who goes to trial should be granted a downward adjustment
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
2
for acceptance of responsibility, see United States v. Weiland, 420 F.3d 1062, 1080
(9th Cir. 2005), and the court was within its discretion to find such exceptional
circumstances did not apply in this case.
AFFIRMED.
3