United States v. Anthony Boykin , 785 F.3d 1352 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10248
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-00141-WBS-1
ANTHONY BOYKIN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted
November 17, 2014—San Francisco, California
Filed May 18, 2015
Before: Michael Daly Hawkins and Johnnie B. Rawlinson,
Circuit Judges, and Barbara M. G. Lynn, District Judge.*
Opinion by Judge Lynn
*
The Honorable Barbara M. G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
2 UNITED STATES V. BOYKIN
SUMMARY**
Criminal Law
The panel affirmed a conviction for one count of
distribution of methamphetamine (Count 6) and the sentence
imposed for five counts of distribution of methamphetamine,
one count of distribution of cocaine, and one count of
conspiracy to distribute.
The panel held that there was sufficient evidence to
support the conviction on Count 6, as to which the jury was
instructed on an aiding and abetting theory of liability. The
panel explained that a rational jury could have found that the
defendant and his brother collaborated on the drug transaction
at issue, considering all of the evidence, including the
conspiracy and the fact that the defendant and his brother
collaborated on multiple drug transactions in person and by
phone.
The panel found deeply troubling the conduct of the
involved law enforcement agencies, but held that the
improprieties do not warrant reversal of the district court’s
denial of a downward departure for sentencing manipulation.
The panel held that it was reasonable for law enforcement to
extend the investigation to build a stronger case with more
controlled purchases by a more credible confidential source,
and that the existence of an ambiguous FBI memo did not
require the district court to conclude that the investigators
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BOYKIN 3
extended the investigation solely to enhance the defendant’s
sentence.
The panel found it was not an abuse of discretion for the
district court to find the defendant’s criminal history to be
accurately stated, and held that the district court did not err in
applying an enhancement for firearm possession. The panel
rejected the defendant’s argument that the drug quantity
attributed to him was unforeseeable.
Because the defendant may move the district court for
relief under Sentencing Guidelines Amendment 782, the
panel declined to remand the case on those grounds.
COUNSEL
Joseph J. Wiseman (argued), Wiseman Law Group, P.C.,
Davis, California, for Defendant-Appellant.
Benjamin B. Wagner, United States Attorney, Camil A.
Skipper, Appellate Chief, Heiko P. Coppola (argued),
Assistant United States Attorney, Sacramento, California, for
Plaintiff-Appellee.
4 UNITED STATES V. BOYKIN
OPINION
LYNN, District Judge:
This appeal arises from a series of controlled drug
purchases conducted over a period of nearly seven months
during 2006 and 2007.
At trial, the defendant, Anthony Boykin (“Boykin”), was
convicted on five counts of distribution of methamphetamine,
one count of distribution of cocaine, and one count of
conspiracy to distribute. His appeal challenges the
sufficiency of the evidence on Count Six, one of the counts
for distribution of methamphetamine. He also challenges his
sentence, arguing that the district court erred in (1) not
departing downward for sentencing manipulation; (2) not
finding his criminal history to be overstated; and (3) not
sustaining objections to certain sentencing enhancements.
The Court finds the evidence was sufficient to convict
Boykin on Count Six. While the Court finds deeply troubling
the conduct of the involved law enforcement agencies, the
improprieties do not warrant reversal due to sentencing
manipulation. Finally, the Court finds it was not an abuse of
discretion for the district court to find the defendant’s
criminal history to be accurately stated, nor for it to apply the
enhancements challenged. Therefore, we affirm the district
court’s rulings on each of the grounds raised on appeal.
UNITED STATES V. BOYKIN 5
FACTUAL AND PROCEDURAL BAGKROUND
I. The Controlled Purchases
Boykin and his brother, Patrick, sold methamphetamine
and cocaine to three different confidential sources from
August 29, 2006 to March 26, 2007. These controlled
purchases usually took place at 251 Wilbur Avenue, or at a
nearby store, Wilbur Market.1 The investigation of the
Boykins was conducted by a Narcotics Enforcement Team,
NET-5, which was composed of local and state law
enforcement representatives and supervised by the California
Department of Justice, Bureau of Narcotic Enforcement.
NET-5 also worked with federal law enforcement agencies,
including the FBI.
On August 29, 2006, the government directed a
confidential source, Rachel Rios, to call Boykin to purchase
two ounces of methamphetamine. Boykin instructed Rios to
go to an apartment complex, where she met with an
unidentified female while he watched the transaction from a
second-story window. The government later deactivated Rios
as a source when it discovered that she was still selling
methamphetamine, and as a result, the government recruited
a new confidential source, Crystal Housley.2
1
The Boykins and others in the neighborhood would frequently “hang
out” and congregate at 251 Wilbur Avenue, a residence owned by the
Boykins’ mother.
2
The record is inconsistent with respect to the spelling of Housley’s
name. Because the trial transcript spells her name as “Housley,” the Court
will do the same.
6 UNITED STATES V. BOYKIN
Housley participated in two controlled purchases
involving Boykin, on September 13, 2006, and September 28,
2006. In the first purchase, Housley called Boykin and asked
to purchase cocaine. He directed her to meet with Patrick,
who completed the transaction. In the second purchase,
Housley called Boykin and asked to buy methamphetamine.
Boykin met her at Wilbur Market and completed the
transaction.
On or about October 27, 2006, Housley was arrested on
federal fraud charges. However, she was not deactivated as
a source until December 23, 2006, after she pled guilty to
fraud. Housley had been handled by Detective Thomas
Oakes, a narcotics detective with the Yuba County Sheriff’s
Department and a member of NET-5, with whom she had a
close relationship. At Boykin’s trial, Detective Oakes
testified that upon learning of Housley’s pending federal
fraud charges, he immediately delivered her to federal agents,
deactivated her as an informant, and paid no further monies
to her after she was arrested. This testimony was inaccurate,
and ultimately led to a stipulation that, in fact, Housley
continued to work as an informant for almost two months
after her arrest, and she was paid during that time period.
Detective Oakes’ brother, Jonathan “Johnny” Oakes, was
a friend or associate of the Boykins. Johnny was known to
“hang out and be in contact” with them, and Detective Oakes
testified that Johnny and Boykin played pool together.3
3
The details of the relationship between Johnny Oakes and the Boykins
is not entirely clear from the record, but the testimony of Detective Oakes
prompted Judge Shubb to remark, “I thought only in the movies did police
officers investigate cases where their brothers were personal friends of the
person they were investigating.” Judge Shubb found the relationship so
UNITED STATES V. BOYKIN 7
Despite the conflict arising from the relationship of Johnny to
the Boykins, Detective Oakes continued to participate in the
investigation, although the extent of his participation was
disputed.4
After Housley was deactivated, the government recruited
a third confidential source, Robert Walton, who conducted
controlled purchases from the Boykins on February 3, 2007,
February 9, 2007, March 16, 2007, and March 26, 2007.
Boykin often facilitated the transaction over the phone, or he
directly passed the drugs to Patrick, who delivered them to
Walton.
On appeal, Boykin challenges the sufficiency of the
evidence only for the drug transaction of February 9, 2007.
Patrick arranged for that transaction to take place at 251
Wilbur Avenue. Both brothers were outside the residence
when Walton arrived. Walton left with Patrick to pick up a
scale and met an unidentified Hispanic male at Wilbur
Market to obtain the drugs, after which they returned to 251
Wilbur Avenue. Walton remained in Patrick’s truck while
Patrick went in the house. Boykin had also left 251 Wilbur
“remarkable” that he thought it would be wrong to not let the jury hear
about Johnny Oakes’ relationship with the Boykins.
4
Detective Oakes testified that his brother’s relationship with the
Boykins prompted his supervisors to limit his involvement in the
investigation by assigning him to manage informant Housley. Detective
Oakes acknowledged that he was present for the two drug transactions
with Housley. He could not recall whether he was present or part of the
surveillance team for transactions involving Walton. Detective Oakes
described his role in the case as “very limited,” which the Court construes
to mean that his role was more limited than at least some other members
of NET-5 working on the Boykin case.
8 UNITED STATES V. BOYKIN
Avenue, but he returned after Patrick and Walton did. An
unidentified white male also entered the residence while
Walton sat in Patrick’s truck. Officers conducting
surveillance testified that Patrick made several trips in and
out of 251 Wilbur Avenue before completing the transaction
with Walton. The government also introduced evidence that
several phone calls were made between Patrick and Boykin
during the relevant time period. The evidence showed that
Patrick began arranging for the drug transaction at 11:58 a.m.,
and it took place at 2:11 p.m. Meanwhile, Boykin called
Patrick at 12:35 p.m., and Patrick called Boykin at 1:51 p.m.
and 3:04 p.m.
On March 29, 2007, law enforcement officials executed
search warrants at 251 Wilbur Avenue, Patrick’s residence,
and Boykin’s residence. At Boykin’s residence, agents seized
$27,000 in cash, scales with drug residue, and cellular
telephones used during the controlled purchases. At 251
Wilbur Avenue, agents found a small amount of
methamphetamine with packaging material, two scales, and
several guns, including a sawed-off shotgun with Boykin’s
fingerprints.
II. Proceedings in the District Court
Boykin and Patrick were charged by indictment with one
count of conspiracy to distribute and possess with intent to
distribute methamphetamine and cocaine, in violation of
21 U.S.C. §§ 846 and 841(a)(1); six counts of distribution of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and
one count of distribution of cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Patrick pled guilty to the conspiracy count, but
Boykin proceeded to a jury trial. On March 4, 2011, the jury
returned its verdict, finding Boykin guilty of the conspiracy
UNITED STATES V. BOYKIN 9
count and six counts of distribution, and acquitting him of
one count of distribution of methamphetamine.
The Presentence Report (PSR) recommended a base
offense level of 34, plus a two-level increase under United
States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1) for
possession of a firearm, resulting in an Adjusted Offense
Level of 36. The PSR recommended 262 months of
incarceration, which was at the low end of the advisory
guideline range, after taking into account Boykin’s criminal
history level of IV.
The district court gave Boykin a two-level reduction for
acceptance of responsibility, which placed the Adjusted
Offense Level at 34. Finding that Boykin’s criminal history
was accurately stated in the PSR, the court concluded that the
guideline range was 210 to 262 months, and sentenced
Boykin to 210 months to avoid any sentencing disparity with
Patrick, who also received a sentence of 210 months.
Boykin filed a timely notice of appeal, challenging the
sufficiency of the evidence on Count Six and arguing that the
district court erred by not granting a downward departure for
sentencing manipulation, and by not finding his criminal
history to be overstated. After initial briefing was complete,
Boykin filed a pro se supplemental brief, arguing the district
court committed plain error by applying a two-level
enhancement for possession of a firearm, and by failing to
conduct an individualized analysis of his participation in the
conspiracy. On September 24, 2014, Boykin’s counsel sent
a letter to the Court, requesting remand in light of
Amendment 782 to the U.S. Sentencing Guidelines.
10 UNITED STATES V. BOYKIN
ANALYSIS
I. Sufficiency of the Evidence
The court reviews de novo a challenge to the sufficiency
of the evidence. United States v. Antonakeas, 255 F.3d 714,
723 (9th Cir. 2001). “Viewing the evidence in the light most
favorable to the government, [the Court] must determine
whether any rational jury could have found [the defendant]
guilty of each element of the crime beyond a reasonable
doubt.” United States v. Esquivel-Ortega, 484 F.3d 1221,
1224 (9th Cir. 2007) (citation omitted). The trier of fact has
the responsibility “to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S.
307, 319 (1979).
A conviction for possession with intent to distribute may
be based on one of three legal theories: (1) co-conspirator
liability; (2) aiding and abetting; and (3) exercising dominion
and control over the contraband. United States v. Sanchez-
Mata, 925 F.2d 1166, 1168 (9th Cir. 1991) (citations
omitted).
Boykin argues the government failed to establish that he
actually or constructively possessed the methamphetamine on
February 9, 2007. However, because the jury was instructed
on an aiding and abetting theory of liability, it was not
necessary for the government to show actual or constructive
possession, or that Boykin actually sold the drugs. See
United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989).
Rather, it was enough to show that Boykin associated with
the criminal venture, participated in it, and sought, by his
actions, to make it a success. See id. Circumstantial evidence
 UNITED STATES V. BOYKIN 11
may support a conviction for aiding and abetting. United
States v. Corona-Verbera, 509 F.3d 1105, 1119 (9th Cir.
2007).
Here, there was sufficient evidence for a rational jury to
find that Boykin aided and abetted Patrick’s distribution of
methamphetamine on February 9, 2007. Patrick arranged the
transaction and told Walton to come to 251 Wilbur Avenue.
Both Patrick and Boykin were there when Walton arrived.
After leaving briefly, Patrick and Walton returned to 251
Wilbur Avenue. Boykin, who had also left, returned to 251
Wilbur Avenue as Patrick was making trips back and forth
between the residence and Patrick’s truck, where Walton
remained and where the drug transaction ultimately took
place. The government’s evidence also showed three phone
calls between Boykin and Patrick on February 9, 2007, two
of which were close in time to the transaction.5 Finally, law
enforcement found drug paraphernalia, guns, and money
when they executed search warrants at Boykin’s residence
and 251 Wilbur Avenue. See Gillock, 886 F.2d at 222
(holding an intent to distribute could be inferred from the gun
found in the defendant’s closet and the large quantities of lab
5
Boykin correctly notes that the first call was from Boykin to Patrick.
However, the second call was from Patrick to Boykin. The Court is bound
to respect that the jury has “exclusive province . . . to . . . resolve
evidentiary conflicts, and draw reasonable inferences from proven facts.”
See Gillock, 886 F.2d at 222. This rule applies to these calls, and also
applies to Boykin’s argument that either the unidentified white male who
entered the residence around the same time he did, or the unidentified
Hispanic male with whom Patrick and Walton met at Wilbur Market,
could have supplied the methamphetamine. Those facts were for the jury
to decide, and even if construed as the defendant contends, they do not
necessarily mean Boykin did not aid and abet the transaction.
12 UNITED STATES V. BOYKIN
equipment and methamphetamine found in the residences of
the defendant’s associates).
Considering all of the evidence, including the conspiracy
and the fact that Boykin and Patrick collaborated on multiple
drug transactions, in person and by phone, a rational jury
could have found that Boykin and Patrick collaborated on the
drug transaction of February 9, 2007. See United States v.
Smith, 832 F.2d 1167, 1172 (9th Cir. 1987) (“Hence, this is
not a case involving nothing more than a simple, isolated
purchase.”). For the aforementioned reasons, we affirm the
jury’s conviction on the February 9, 2007 count for
distribution of methamphetamine.
II. Sentencing
A. Sentencing Manipulation
The Ninth Circuit has not always been careful in
recognizing the distinction between “sentencing entrapment”
and “sentencing manipulation.” See, e.g., United States v. Si,
343 F.3d 1116, 1128 (9th Cir. 2003) (“the result of sentencing
factor manipulation, also known as sentencing entrapment”);
United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999);
United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994)
(describing “sentencing entrapment” as “sentence factor
manipulation”). When a defendant can show he was
predisposed to commit a minor or lesser offense, but was
entrapped to commit a greater offense, subject to greater
punishment, he may be eligible for a downward departure or
variance for “sentencing entrapment.” United States v. Mejia,
559 F.3d 1113, 1118 (9th Cir. 2009). In contrast, “sentencing
manipulation” occurs when the government increases a
defendant’s guideline sentence by conducting a lengthy
UNITED STATES V. BOYKIN 13
investigation which increases the number of drug transactions
and quantities for which the defendant is responsible. United
States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009). In other
words, what sets “sentencing entrapment” apart from
“sentencing manipulation” is that, in the latter, “the judicial
gaze should, in the usual case, focus primarily—though not
necessarily exclusively—on the government’s conduct and
motives.” United States v. Fontes, 415 F.3d 174, 181–82 (1st
Cir. 2005).
To prove sentencing manipulation, a defendant must show
“that the officers engaged in the later drug transactions solely
to enhance his potential sentence.” Torres, 563 F.3d at 734.
Cases from other circuits have granted relief for sentencing
manipulation in “only the extreme and unusual case”
involving “outrageous governmental conduct.” See Fontes,
415 F.3d at 180; United States v. Beltran, 571 F.3d 1013,
1018–19 (10th Cir. 2009) (explaining that, based on due
process principles, sentencing manipulation “allow[s] a court
to modify a sentence if considering the totality of the
circumstances, ‘the government’s conduct is so shocking,
outrageous and intolerable that it offends ‘the universal sense
of justice’’”). If a court finds sentencing manipulation, a
downward departure should be applied to the guidelines
range, “since such manipulation artificially inflates the
offense level by increasing the quantity of drugs included in
the relevant conduct.” Torres, 563 F.3d at 734–35.
Although Boykin argued below that his sentence should
be reduced due to sentencing entrapment, the substance of his
argument and the district court’s analysis indicate that Boykin
mislabeled the argument. In fact, Boykin’s challenge
addressed the conduct of law enforcement rather than his
predisposition. Given the thrust of Boykin’s argument and
14 UNITED STATES V. BOYKIN
the lack of precision with which we have previously used the
terms “sentencing entrapment” and “sentencing
manipulation,” we review the district court’s factual findings
in the sentencing phase for clear error. See United States v.
Castaneda, 94 F.3d 592, 594 (9th Cir. 1996). “In order to
reverse a district court’s factual findings as clearly erroneous,
we must determine that the district court’s factual findings
were illogical, implausible, or without support in the record.”
United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010).
To support his sentencing manipulation argument, Boykin
points to three facts that allegedly motivated law enforcement
to induce further controlled purchases from the Boykins:
(1) the FBI memo reviewing the progress of the investigation
against Patrick, Boykin, and others, and explaining that
additional drug buys would be necessary to reach the
sentencing goals set by the U.S. Attorney’s Office;
(2) Detective Oakes’ close relationship with confidential
source Housley; and (3) the close relationship of Detective
Oakes’ brother, Johnny, to Boykin and Patrick. Boykin
argues that Detective Oakes’ participation in the investigation
constitutes outrageous government conduct, which supports
a finding of sentencing manipulation under a test employed
by the Tenth Circuit. See Beltran, 571 F.3d at 1017–18. In
the alternative, Boykin argues that he was entitled to a
downward departure because law enforcement engaged in
additional transactions solely to increase his sentence, urging
us to follow precedent from the Eighth Circuit. See Torres,
563 F.3d at 734.
Regardless of the test employed, Boykin fails to
demonstrate that the district court’s findings were clearly
erroneous. With regard to the test in Beltran, although the
Court is deeply troubled by the participation of Detective
UNITED STATES V. BOYKIN 15
Oakes, the investigation fell just shy of constituting
outrageous government conduct. As a result of his unusually
close relationship with informant Housley and his brother’s
friendship with the Boykins, Oakes clearly had multiple
incentives to prolong the investigation.6 Furthering this
perception, Oakes gave erroneous testimony at trial regarding
his response to learning of Housley’s arrest on fraud charges,
requiring a stipulation at trial between the parties that Oakes
in fact continued working with, and paying, Housley after the
arrest. However, despite Oakes’ conflict of interest, because
his role was limited and he was being supervised, rather than
directing the investigation, his conduct was “wrong and
troubling,” but not so “extreme and outrageous” as to warrant
a downward departure for sentencing manipulation. See
Fontes, 415 F.3d at 183.7
With respect to the Torres test, Boykin asks the Court to
hold that it is improper for the government to continue an
6
Boykin also notes that Detective Oakes arranged for NET-5 to pay for
Housley’s apartment and utilities. Detective Oakes also gave her his
home phone number, which he admitted was unusual. However, NET-5
apparently had a meeting to approve these payments, and Detective Oakes
testified that agents kept a close eye on Housley because NET-5 paid for
her apartment.
7
The investigation of the Boykins was not an operation “created and
staged” by law enforcement, nor was law enforcement “trolling for
targets” based on economic and social conditions in the community. See
United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013). Rather, in
investigating the Boykins, law enforcement was infiltrating a preexisting
criminal organization. See id. at 302. (“It is not outrageous . . . to
approach individuals who are already involved in or contemplating a
criminal act, or to provide necessary items to a conspiracy.”). Therefore,
the due process concerns raised and rejected in Black are not implicated
in this case.
16 UNITED STATES V. BOYKIN
investigation merely to enhance the defendant’s sentence, and
that mitigating a defendant’s sentence is a fitting tool to deter
such improper investigations. This Court has previously held
that a district court may consider the full amount of drugs
involved when law enforcement arranges multiple controlled
drug purchases for legitimate investigatory reasons. United
States v. Baker, 63 F.3d 1478, 1500 (9th Cir. 1995). Thus,
the issue here is whether legitimate reasons existed for the
investigation or whether it was solely intended to increase
Boykin’s sentence.
In Baker, this Court rejected the defendant’s argument
that his conviction should be reversed because the
government stretched out its investigation to increase the
drug quantity and potential charges against the defendant
after it had sufficient evidence to indict. Id. The Court
“decline[d] to adopt a rule that, in effect, would find
‘sentencing manipulation’ whenever the government, even
though it has enough evidence to indict, opts instead to wait
in favor of continuing its investigation” because “[s]uch a
rule ‘would unnecessarily and unfairly restrict the discretion
and judgment of investigators and prosecutors,’” and
“[p]olice . . . must be given leeway to probe the depth and
extent of a criminal enterprise, to determine whether
coconspirators exist, and to trace . . . deeper into the
distribution hierarchy.” Id. (internal quotations and citations
omitted). Finally, the Court emphasized that because “the
government bears the burden of proving its case beyond a
reasonable doubt, it must be permitted to exercise its own
judgment in determining at what point in an investigation
enough evidence has been obtained.” Id.
Here, there was evidence that the government extended its
investigation to build a stronger case against Boykin. Of
UNITED STATES V. BOYKIN 17
particular concern was that the government’s first two
confidential sources—Rios and Housley—were both
convicted of serious offenses during the period they were
acting as confidential sources against the Boykins. Therefore,
it was reasonable for law enforcement to extend the
investigation with more controlled purchases by a more
credible confidential source. This is precisely what law
enforcement did in having Walton make controlled purchases
in February and March 2007.
Further, the existence of the FBI memo did not require the
district court to conclude that the investigators extended the
investigation solely to enhance Boykin’s potential sentence.
Although the memo specifically recommended drug volumes
to establish charges, its text is too ambiguous to establish that
the agents’ sole intent was to enhance Boykin’s sentence,
because it discusses several defendants earlier in the text and
the phrase in question does not clearly refer to Boykin:
Additional drug buys from several of the
captioned subjects will be necessary to reach
the preferred thresholds established by the
United States Attorney’s Office in the Eastern
District of California. It is recommended by
their office that 50 grams or more of
methamphetamine or 500 grams or more of a
cocaine powder be purchased from one
individual to secure a five (5) year mandatory
minimum sentence. This case continues.
In fact, on January 31, 2007, when the memo was
circulated, Boykin had already participated in controlled
purchases involving over 50 grams of methamphetamine,
which was the amount described in the memo as necessary to
18 UNITED STATES V. BOYKIN
meet the five-year statutory mandatory minimum sentence.8
Thus, the district court did not clearly err by not finding the
FBI memo to be a basis for a charge of sentencing
manipulation.
B. Criminal History
Boykin also argues the district court erred by failing to
look at the underlying facts of his criminal history when
deciding if it was overstated.
The Court reviews de novo a district court’s interpretation
of sentencing guidelines, and the application of the
sentencing guidelines is reviewed for abuse of discretion.
United States v. Hernandez-Guerrero, 633 F.3d 933, 935 (9th
Cir. 2011). “A sentencing court is permitted under U.S.S.G.
§ 4A1.3 to depart from a recommended sentence if it believes
that a defendant’s criminal history category significantly
over-represents the seriousness of his criminal record or the
likelihood that he will commit further crimes.” United States
v. Govan, 152 F.3d 1088, 1094 (9th Cir. 1998). Furthermore,
the district court retains discretion to depart downward from
the guidelines should it find “mitigating circumstances of a
kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that described.”
United States v. Brown, 985 F.2d 478, 481 (9th Cir. 1993)
8
On August 29, 2006, Boykin distributed two ounces of
methamphetamine. On September 13, 2006, Boykin distributed one-
eighth of an ounce of cocaine. On September 28, 2006, Boykin
distributed eight ounces of methamphetamine. One ounce is equal to
approximately 28.35 grams, which means Boykin had met the 50 gram
threshold well before the FBI memo was circulated.
UNITED STATES V. BOYKIN 19
(quoting 18 U.S.C. § 3553(b)) (alteration omitted). The
district court may consider “without limitation, any
information concerning the background, character and
conduct of the defendant, unless otherwise prohibited [by the
guidelines or other law].” Id. (citing U.S.S.G. § 1B1.4).
At the sentencing hearing, Boykin gave a detailed
explanation of the facts and circumstances surrounding his
convictions for vandalism and a loud noise disturbance, and
argued that the facts underlying those offenses were not
sufficiently egregious to warrant two additional points being
counted toward his criminal history category. The district
court responded that “you get on a slippery slope when you
start trying to look at the underlying facts and look beyond
the judgment in determining the criminal history,” and stated
that the “criminal history [was] calculated properly,” and that
it did not “believe that the criminal-history category
[overstated] the seriousness of the criminal history.” This
ruling was not an abuse of discretion, and the trial court was
not required to give a further explanation.
Boykin further objects to the addition of two criminal
history points for a 2001 misdemeanor conviction for
disturbance of the peace, which Boykin argues was part of a
plea deal in which the prosecutor found that the domestic
abuse victim’s allegations were not credible. He also objects
to the addition of one point for a 2005 misdemeanor
conviction for vandalism, in which Boykin arrived at a
burning apartment allegedly believing his children were
inside, discovered his children were fine, and then became
obstructive when officers allegedly treated him
contemptuously.
20 UNITED STATES V. BOYKIN
It was not an abuse of discretion for the court to
determine these incidents were properly calculated in
determining Boykin’s criminal history.
C. Weapon and Coconspirator Enhancements
Finally, Boykin argues that the district court erred by
applying a two-level enhancement for firearm possession.
This Court reviews for clear error the district court’s factual
determination that the firearm enhancement in U.S.S.G.
§ 2D1.1(b)(1) applies. United States v. Kelso, 942 F.2d 680,
681 (9th Cir. 1991).
The defendant argues the district court never connected
him to the handgun. However, Boykin misinterprets both the
enhancement and his burden. The two-level sentencing
adjustment is appropriate “unless it is clearly improbable that
the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1 n. 3 (2010). The government “must prove
possession by a preponderance of the evidence before the
court can apply the two-level increase under § 2D1.1(b)(1).”
United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997)
(quoting United States v. Mergerson, 4 F.3d 337, 350 (5th
Cir. 1993)).
This Court has defined “possession” broadly. United
States v. Pitts, 6 F.3d 1366, 1372 (9th Cir. 1993). “To
demonstrate constructive possession the government must
prove ‘a sufficient connection between the defendant and the
contraband to support the inference that the defendant
exercised dominion and control over the [contraband].’”
Kelso, 942 F.2d at 682 (quoting United States v. Disla,
805 F.2d 1340, 1350 (9th Cir. 1986)). Where a defendant is
convicted of conspiracy, the firearm enhancement can be
UNITED STATES V. BOYKIN 21
based on all of the offense conduct, not just the crime of
conviction. United States v. Willard, 919 F.2d 606, 610 (9th
Cir. 1990), cert. denied, 502 U.S. 872 (1991).
Here, agents recovered several firearms from the
residence at 251 Wilbur Avenue, including a sawed-off
shotgun with Boykin’s fingerprints. The evidence showed
Boykin engaged in numerous drug transactions at 251 Wilbur
Avenue. Thus, the court did not clearly err by finding Boykin
possessed a weapon connected with the offense. See Pitts,
6 F.3d at 1372.
Boykin also argues the district court failed to make a
proper individualized assessment of his relevant conduct in
the conspiracy. He argues his tenuous connection with the
transaction of February 9, 2007 made that drug quantity
unforeseeable to him.
For reasons already discussed, the evidence was sufficient
to convict Boykin of aiding and abetting the transaction of
February 9, 2007. Therefore, the drug quantity attributed to
him was foreseeable. See Willard, 919 F.2d at 610.
For the foregoing reasons, we affirm the sentence
imposed by the district court.9
AFFIRMED.
9
Because Boykin may move the district court for relief under
Amendment 782 to the Guidelines, the Court declines to remand the case
on those grounds. See 18 U.S.C. § 3582(c)(2).