United States v. Dee Ann Homer

FILED
NOT FOR PUBLICATION DEC 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10497
Plaintiff - Appellee, D.C. No. 4:11-cr-00485-DCB-
GEE-1
v.
DEE ANN HOMER, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Ancer L. Haggerty, District Judge, Presiding
Submitted December 3, 2012**
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.
Dee Ann Homer appeals from the district court’s sentence following her
guilty plea to one count of possession of marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291, and we affirm. Because the parties are familiar with the history of
this case, we need not recount it here.
I
The district court properly considered Homer’s August 2010 arrest for
transporting 174 pounds of marijuana as “relevant conduct” under U.S.S.G.
§ 1B1.3(a)(2) in calculating Homer’s base offense level. By introducing the
Border Patrol “report of apprehension or seizure” from the August 2010 incident,
which was corroborated by Homer’s own statements in her presentence interview,
the Government established the salient facts of the August 2010 incident by a
preponderance of the evidence, United States v. Newhoff, 627 F.3d 1163, 1170
(9th Cir. 2010), as well as that incident’s connection to the offense of conviction,
see U.S.S.G. § 1B1.3(a)(2) (a prior offense qualifies as “relevant conduct” if it
shares a single factor in common with the offense of conviction, such as a common
purpose, similar modus operandi, or other factual similarity).
The report indicated that the two offenses occurred less than five months
apart at the same highway checkpoint, Homer was the registered owner and driver
of the car in both instances, and she was transporting a similar quantity of
marijuana in her trunk. Moreover, Homer’s presentence interview reveals that she
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was transporting the marijuana for the same “friend” on both occasions, and had
agreed to transport the second load to compensate for the seizure of the first.
Contrary to Homer’s assertions, the district court’s consideration of the
August 2010 incident did not violate her constitutional rights, notwithstanding that
she was never charged or convicted in connection with that incident. “Standing
alone, [the sentencing court’s] consideration of facts or circumstances beyond
those found by a jury or admitted by the defendant does not violate the Sixth
Amendment right to jury trial. A constitutional infirmity arises only when extra-
verdict findings are made in a mandatory guidelines system,” which we no longer
have. United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir. 2005) (en banc)
(emphasis added).
II
The government reasonably declined to move for the third-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(b) based on Homer’s
reservation of her right to appeal, and the district court was not required to apply
that reduction sua sponte. United States v. Johnson, 581 F.3d 994, 1003-04 (9th
Cir. 2009). Homer’s contrary argument is foreclosed by this Court’s decision in
United States v. Medina-Beltran, 542 F.3d 729, 731 (9th Cir.2008), and “[i]t is
settled law that one three-judge panel of this court cannot ordinarily reconsider or
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overrule the decision of a prior panel.” Santamaria v. Horsley, 110 F.3d 1352,
1355 (9th Cir. 1997). Because Medina-Beltran does not conflict with intervening
Supreme Court precedent, Homer’s arguments for overturning that decision fail.
III
The district judge’s statements at the sentencing hearing and in his written
“Statement of Reasons” adequately explain the basis for his sentencing decision.
Those statements demonstrate that the district judge considered the parties’
evidence and arguments, see Rita v. United States, 551 U.S. 338, 358 (2007), and
are sufficient to facilitate appellate review, United States v. Carty, 520 F.3d 984,
992 (9th Cir. 2008). Nothing more is required.
IV
The district judge did not abuse his discretion by imposing a sentence of
incarceration. The record reflects that the district judge considered the statutory
sentencing factors in 18 U.S.C. § 3553(a), the Guidelines range, and the parties’
arguments and submissions. “The statute says that a court must ‘consider’ the
listed factors, not that it must reduce the sentence below the guidelines range if any
mitigating factor is present.” United States v. Contreras-Hernandez, 628 F.3d
1169, 1173 (9th Cir. 2011).
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By “explicitly referenc[ing] the § 3553(a) factors, [Homer’s] ‘personal
history and characteristics,’ and ‘the circumstances of this arrest’ when making
[his] sentencing determination,’” the district judge demonstrated that he had
“‘considered the parties’ arguments and ha[d] a reasoned basis for exercising his
own legal decisionmaking authority,’ which satisfies the requirements of our case
law.” Id. at 1174 (quoting Rita, 551 U.S. at 356).
AFFIRMED.
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