United States v. Raynard Bass , 562 F. App'x 579 ( 2014 )

FILED
NOT FOR PUBLICATION MAR 13 2014
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50190
Plaintiff - Appellee, D.C. No. 3:11-cr-02812-JAH
v.
RAYNARD P. BASS, a.k.a. X-Ray, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Raynard P. Bass appeals from the district court’s judgment and challenges
the 63-month sentence imposed following his guilty-plea conviction for conspiracy
to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and
846, and two counts of distribution of a controlled substance, in violation of 21
U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Bass contends that the district court violated his Sixth Amendment rights by
determining the quantity of drugs when calculating his sentence. This argument
fails because the district court may determine drug quantity without running afoul
of the Sixth Amendment as long as that determination does not have any effect on
the defendant’s statutory sentencing range. See Alleyne v. United States, 133 S. Ct.
2151, 2155 (2013) (facts that increase the statutory minimum must be found by a
jury); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (facts that increase the
statutory maximum must be found by a jury).
Bass also contends that the district court erred by denying him a minor role
adjustment under U.S.S.G. § 3B1.2(b). The district court did not clearly err in
denying the role adjustment because Bass failed to carry his burden of proving that
he was “substantially less culpable than the average participant” in the criminal
scheme. See U.S.S.G. § 3B1.2 cmt. n.3(A); United States v. Rodriguez-Castro,
641 F.3d 1189, 1193 (9th Cir. 2011).
Bass also contends that the district court erred procedurally by treating the
advisory Guidelines range as “the presumptive sentence.” We review for plain
error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and find none. The record reflects that the district court used the Guidelines
range appropriately, as the “starting point and the initial benchmark” for Bass’s
sentence, but not as its only determinant. See United States v. Carty, 520 F.3d 984,
2 13-50190
991 (9th Cir. 2008) (en banc) (internal quotations omitted).
Bass finally contends that the district court erred by giving too much weight
to drug quantity and too little weight to the mitigating factors in his case. The
district court did not abuse its discretion in imposing Bass’s sentence. See Gall v.
United States, 552 U.S. 38, 51 (2007). The below-Guidelines sentence is
substantively reasonable in light of the totality of the circumstances and the 18
U.S.C. § 3553(a) factors. See id., United States v. Gutierrez-Sanchez, 587 F.3d
904, 908 (9th Cir. 2009) (the weight to be given to the various factors in a
particular case is left to the discretion of the district court).
AFFIRMED.
3 13-50190