United States v. Fritz Anderson , 359 F. App'x 855 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 21 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 08-30469, 08-30470
Plaintiff - Appellee, D. Ct. No. 1:07-CR-00112-RFC-1,
D. Ct. No. 1:07-CR-00015-RFC-1
v.
FRITZ ANDERSON, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
**
Submitted December 8, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON, and BERZON, Circuit Judges.
Fritz Anderson was charged with 29 counts of drug trafficking in violation
of 21 U.S.C. § 841 and one count of using, carrying or possessing a firearm in
relation to drug trafficking in violation of 18 U.S.C. § 924(c). Anderson moved for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
acquittal on the final count; the district court granted the motion as to using or
carrying a firearm but denied the motion as to possessing a firearm in furtherance
of a drug crime and let the count stand. The jury convicted Anderson on all thirty
counts, and the court imposed a sentence of 40 years (480 months). Anderson
timely appealed.
“[W]e review the district court’s denial of a motion to acquit de novo.”
United States v. Mosley, 465 F.3d 412, 415 (9th Cir. 2006). “[A] defendant who
accepts firearms in exchange for drugs possesses the firearms ‘in furtherance of’ a
drug trafficking offense.” United States v. Mahan, No. 08-30475, slip op. at 8 (9th
Cir. Nov. 16, 2009). Because Anderson accepted firearms as partial payment for
outstanding drug debts, he possessed those firearms in furtherance of his drug
trafficking offenses, and the district court was correct to deny his motion to acquit.
The substantive reasonableness of a sentence is reviewed under an abuse of
discretion standard. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). “For a non-Guidelines sentence, we are to ‘give due deference to the district
court's decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Nothing in
the record suggests that Judge Cebull abused his discretion when he departed
downward significantly, but not as far as Mr. Anderson would have preferred, from
the guideline sentence.
2
AFFIRMED.
3