United States v. Dorian Lassen ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10086
Plaintiff-Appellee, D.C. No.
1:18-cr-00030-JMS-1
v.
DORIAN ETSUO LASSEN, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-10107
Plaintiff-Appellee, D.C. No.
1:18-cr-00030-JMS-2
v.
DAVIN TANAKA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief District Judge, Presiding
Submitted July 9, 2020**
Honolulu, Hawaii
*
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).
Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.
Dorian Lassen and Davin Tanaka appeal from their sentences for conspiracy
to distribute methamphetamine. We have jurisdiction under 18 U.S.C. § 3742. As
the parties are familiar with the facts, we do not recount them here. We affirm.
1. Lassen argues that the district court abused its discretion when it
found that Lassen was a “manager” or “supervisor” of the conspiracy, increasing
his offense level by two under U.S.S.G. § 3B1.1(c). A defendant is a manager or
supervisor only if the defendant “exercised some control over others involved in
the commission of the offense” or was “responsible for organizing others for the
purpose of carrying out the crime.” United States v. Mares-Molina, 913 F.2d 770,
773 (9th Cir. 1990) (citation omitted).
The record demonstrates that Lassen exercised control over coconspirator
Joshua Shimoda. Lassen had final decision-making authority over if and when
Shimoda could sell or retrieve the drugs that Shimoda hid as part of the conspiracy.
United States v. Varela, 993 F.2d 686, 691 (9th Cir. 1993); United States v.
Beltran, 165 F.3d 1266, 1271 (9th Cir. 1999). This level of control justified a role
adjustment under § 3B1.1(c).
2. Tanaka argues that the district court erroneously held him responsible
for the full quantity of drugs found in Shimoda’s possession. In the case of jointly
undertaken criminal activity, acts of coconspirators count as relevant conduct for
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sentencing if: (1) the acts were “within the scope of the jointly undertaken criminal
activity,” (2) the acts were “in furtherance of that criminal activity,” and (3) the
acts were “reasonably foreseeable in connection with that criminal activity.”
U.S.S.G. § 1B1.3(a)(1)(B).
Tanaka argues that the court should have required clear and convincing
evidence because of the “extremely disproportionate effect” the drug quantity had
on his sentence. United States v. Hymas, 780 F.3d 1285, 1289 (9th Cir. 2015)
(internal quotation marks and citations omitted). However, when the defendant
pleads guilty to conspiracy, and drug quantities are based on the scope of that
conspiracy, clear and convincing evidence is not necessary. United States v.
Treadwell, 593 F.3d 990, 1001 (9th Cir. 2010) overruled on other grounds by
United States v. Miller, 953 F.3d 1095 (9th Cir. 2020); see also United States v.
Valle, 940 F.3d 473, 479 (9th Cir. 2019) (explaining that the applicability of the
clear and convincing standard to sentencing enhancements turns on “the totality of
circumstances,” including “whether the enhanced sentence negates . . . the
prosecution’s burden of proof for the crime alleged,” and “whether the increase in
sentence is based on the extent of a conspiracy” (citation omitted)).
Tanaka also argues that the district court clearly erred in its factual findings
holding Tanaka responsible for the drugs. In fact, the record shows that Tanaka
regularly delivered drugs from Lassen to Shimoda and that all drugs involved in
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the conspiracy were held in a single storage locker. The district court considered
each of these factors at sentencing and made the necessary “particularized
findings” about Tanaka’s responsibility. United States v. Lloyd, 807 F.3d 1128,
1142 (9th Cir. 2015). The district court did not abuse its discretion by holding
Tanaka responsible for all drugs involved in the conspiracy.
AFFIRMED.
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