United States v. Travis Newbold ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30004
Plaintiff-Appellee, D.C. No.
4:17-cr-00328-BLW-1
v.
TRAVIS M. NEWBOLD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted March 5, 2020**
Portland, Oregon
Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,*** District Judge.
Travis M. Newbold appeals from the district court’s judgment and challenges
the 48–month sentence imposed following his conviction for importing and
*
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).
***
The Honorable Paul C. Huck, Senior United States District Judge for
the U.S. District Court for Southern Florida, sitting by designation.
possessing anabolic steroids—a Schedule III controlled substance—in violation of
21 U.S.C. §§ 846, 952, and 960; 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and 18 U.S.C.
§ 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
First, Newbold argues that his sentence is unreasonable because the district
court abused its discretion in applying the unit conversion ratio in U.S.S.G.
§ 2D1.1(c), Note (F) (“Note (F)”) over his objection that the ratio is not empirically
based. The district court did not procedurally err because the record reflects that the
court appreciated, albeit declined to exercise, its Kimbrough1 discretion—that is, the
district court acknowledged its authority to vary from the Guidelines on the basis of
Newbold’s policy argument that Note (F)’s ratio is not empirically based. Cf. Spears
v. United States, 555 U.S. 261, 264–66 (2009) (clarifying that the point of
Kimbrough was to recognize a district court’s authority to vary from the Guidelines
on the basis of a policy disagreement). The record also supports the district court’s
conclusion that Newbold did not present sufficient evidence to determine that Note
(F)’s unit conversion ratio lacks an empirical basis. Further, the district court did not
abuse its discretion in sentencing Newbold because, even if Note (F)’s unit
conversion ratio lacks an empirical basis, the court was not obligated to reject or
depart from the guideline; Kimbrough merely establishes a district court’s discretion
1
Kimbrough v. United States, 552 U.S. 85 (2007).
2
to do so. See United States v. Carper, 659 F.3d 923, 925 (9th Cir. 2011); United
States v. Henderson, 649 F.3d 955, 964–65 (9th Cir. 2011). In light of the totality of
the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, we hold that
Newbold’s within-Guidelines sentence is substantively reasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007).
Second, Newbold argues that the district court misinterpreted Note (F) when
it considered Newbold’s bulk steroid powder to be “an anabolic steroid that is not in
a pill, capsule, tablet, or liquid form.” U.S.S.G. § 2D1.1(c), Note (F). We review this
issue for plain error because Newbold did not raise it in the district court. See United
States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). We do not conclude that the
district court committed an error so “obvious” when it considered bulk steroid
powder to be “an anabolic steroid that is not in a pill, capsule, tablet, or liquid form.”
See Johnson v. United States, 520 U.S. 461, 467 (1997). The district court’s
interpretation comports with Note (F)’s plain text and the Sentencing Commission’s
commentary suggests that this provision of Note (F) was intended to encompass any
form of anabolic steroids not in pill, capsule, tablet, or liquid form. See U.S.S.G.
§ 2D1.1(c), Note (F).
AFFIRMED.
3