United States v. Jeffery Rowell ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10194
Plaintiff-Appellee, D.C. No.
1:18-cr-00131-DKW-1
v.
JEFFERY ROWELL, AKA Jeffrey D. MEMORANDUM*
Rowell, AKA Darnell Stinnette, AKA
Jeffery D. Stinnette,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted July 10, 2020**
Honolulu, Hawaii
Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.
Jeffery Rowell appeals from the sentence imposed by the district court
following his jury conviction for distributing cocaine within 1,000 feet of a
playground, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 860. As the parties
*
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).
are familiar with the facts, we do not recount them here. We affirm.
1. At sentencing, the district court found by clear and convincing evidence
that Rowell possessed a wristlet bag containing methamphetamine at the time of
his arrest, and the court used it as relevant conduct which significantly increased
Rowell’s base offense level for calculating his Sentencing Guidelines range. We
review for clear error a district court’s factual findings about relevant conduct.
United States v. Daychild, 357 F.3d 1082, 1103 (9th Cir. 2004).
The district court’s finding that there was clear and convincing evidence that
Rowell possessed the wristlet bag containing methamphetamine at the time of his
arrest is not “illogical, implausible, or without support in the record.” United
States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (citation omitted) (setting forth
clear error standard of review). The record indicates that the task force officer who
processed Rowell after his arrest remembered that Rowell’s property included the
wristlet bag, and that Rowell declined consenting for the officer to search the
wristlet bag.
2. Rowell argues for the first time on appeal that, even if he possessed the
wristlet bag containing methamphetamine, the district court should not have
considered it relevant conduct under United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 1B1.3. Because Rowell did not raise this issue in the district court,
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we review for plain error. See United States v. Liew, 856 F.3d 585, 596 (9th Cir.
2017).
For the instant case, section 1B1.3(a)(2) provides that the base offense level
is determined by “relevant conduct” which includes all acts and omissions
committed by the defendant “that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see
also id. cmt. n.5(B)(i)-(ii) (discussing “common scheme or plan” and “same course
of conduct”).
Rowell failed to show that the district court committed a “clear or obvious”
error by considering his possession of methamphetamine as relevant conduct under
section 1B1.3(a)(2). Liew, 856 F.3d at 596 (setting forth plain error standard of
review). Rowell’s possession of methamphetamine had a similar modus operandi
as his underlying cocaine offense because both drugs were packaged in Ziploc
bags, and the packaging indicated Rowell’s intent to distribute the
methamphetamine. See U.S.S.G. § 1B1.3 cmt. n.5(B)(i)-(ii). In addition, Rowell
possessed the methamphetamine only a few months after his underlying offense
involving distributing cocaine. See id. § 1B1.3 cmt. n.5(B)(ii).
3. Finally, Rowell argues that the district court erred by denying him a
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The parties
agree that we review for clear error. See Daychild, 357 F.3d at 1100 n.27.
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Section 3E1.1 allows for a two-level downward adjustment to a defendant’s
base offense level “[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a). This adjustment is generally
“not intended to apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt, is convicted, and
only then admits guilt and expresses remorse.” Id. § 3E1.1 cmt. n.2. However,
“[c]onviction by trial . . . does not automatically preclude a defendant from
consideration for such a reduction” and “[i]n rare situations a defendant may
clearly demonstrate an acceptance of responsibility for his criminal conduct even
though he exercises his constitutional right to a trial.” Id.
Here, the district court denied Rowell a downward adjustment for
acceptance of responsibility because Rowell went to trial where defense counsel
argued that Rowell was not the person who sold cocaine to an undercover officer,
and Rowell did not accept responsibility until after his conviction in a presentence
interview. This decision was not clear error. See id. § 3E1.1 cmt. n.5 (“The
sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility. For this reason, the determination of the sentencing judge is entitled
to great deference on review.”).
AFFIRMED.
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