                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 18 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30160

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-00005-SLG-DMS-5
 v.

MURVILLE LAVELLE LAMPKIN, AKA                   MEMORANDUM*
Lamar,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                   Sharon L. Gleason, District Judge, Presiding

                           Submitted August 12, 2020**
                               Anchorage, Alaska

Before: RAWLINSON, MURGUIA, and R. NELSON, Circuit Judges.

      Murville Lampkin was found guilty of a number of crimes—among them

possession with intent to distribute methamphetamine in violation of 21 U.S.C.

§ 841(a). He challenges this conviction, for which he was sentenced to 240



      *
             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).
months, on the basis that the jury failed to make the necessary factual finding as to

the weight of the methamphetamine, in violation of Alleyne v. United States, 570

U.S. 99 (2013). He also appeals the denial of his motion to sever his case from co-

defendant Tracey Trujillo. We review questions of law such as Alleyne claims de

novo, see, e.g., United States v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003) (citing

United States v. Gill, 280 F.3d 923, 930 (9th Cir. 2002)), and a district court’s

denial of a motion to sever for an abuse of discretion, United States v. Decoud, 456

F.3d 996, 1008 (9th Cir. 2006) (citing United States v. Pitner, 307 F.3d 1178, 1181

(9th Cir. 2002)). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     At the time of Lampkin’s sentencing, a violation of 21 U.S.C.

§ 841(a) involving at least 50 grams of methamphetamine and a defendant with a

prior conviction for a serious drug or violent felony carried a sentence of “a term of

imprisonment which may not be less than 20 years and not more than life

imprisonment.” 21 U.S.C. § 841(b)(1)(A)(viii). “Facts that increase the

mandatory minimum sentence are . . . elements and must be submitted to the jury

and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 108. Lampkin, as

noted above, claims that the jury failed to make the necessary factual finding as to

the weight of the drugs.

      Here, a special verdict form asked the jury whether Lampkin “possessed the

following quantity: 50 grams or more of methamphetamine.” The jury answered


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that question in the affirmative. Lampkin maintains the form should have used the

phrase “actual methamphetamine” or “pure methamphetamine” to describe the

drug. He provides no authority to support the proposition, and there are a number

of reasons to reject it. First, the form tracks verbatim the language of 21 U.S.C.

§ 841(b)(1)(A)(viii) (“50 grams or more of methamphetamine”). Second, when

read in light of the jury instruction on the possession counts, which instructed the

jury to exclude from the weight of the drugs “any packaging material,” and another

special verdict form, which asked the jury to determine whether Lampkin

possessed “a mixture and substance containing [methamphetamine]” that weighed

50 grams or more, it is evident that the plain reference to “methamphetamine” in

the special verdict form at issue refers solely to pure or actual methamphetamine

rather than the drug in combination with packaging or another substance.

Accordingly, the special verdict form was proper, and the jury made the necessary

factual finding under Alleyne.

      Moreover, even if we were to assume that the special verdict form was

defective, the error was harmless in light of the overwhelming and undisputed

evidence presented at trial regarding the weight and purity of the

methamphetamine in Lampkin’s possession. An Alleyne error does not require

reversal if the error was harmless. United States v. Carr, 761 F.3d 1068, 1082 (9th

Cir. 2014) (citing United States v. Salazar-Lopez, 506 F.3d 748, 755 (9th Cir.


                                          3
2007)). “An Alleyne error is harmless only ‘where a reviewing court concludes

beyond a reasonable doubt that the omitted element was uncontested and supported

by overwhelming evidence, such that the jury verdict would have been the same

absent the error.’” Id. at 1082 (quoting Neder v. United States, 527 U.S. 1, 17

(1999)).

      At trial, the government presented uncontested and overwhelming evidence

as to the weight and purity of the methamphetamine in Lampkin’s possession. In

fact, Lampkin stipulated to the admission of a number of lab reports concerning

drugs seized from his home—among them a report which analyzed the

methamphetamine found in the safe. This report concluded that the purity of the

methamphetamine found in the safe was approximately 97.6 percent and that

amount of pure methamphetamine was about 407.5 grams—more than eight times

the amount (50 grams) which triggered Lampkin’s ultimate sentence.

      2.     Lampkin further argues that the district court abused its discretion in

denying his motion to sever and that the resulting continuance deprived him of his

right to a speedy trial pursuant to the Speedy Trial Act. “The test for abuse of

discretion by the district court is ‘whether a joint trial was so manifestly prejudicial

as to require the trial judge to exercise his discretion in but one way, by ordering a

separate trial.’” Decoud, 456 F.3d at 1008 (quoting United States v. Patterson, 819

F.2d 1495, 1501 (9th Cir. 1987)).


                                           4
      Here, as an initial matter, Lampkin never renewed his oral motion to sever—

despite the fact that the district court invited Lampkin to renew the motion—and

thus failed to diligently pursue the motion to sever. See United States v. Vasquez-

Velasco, 15 F.3d 833, 845 n.9 (9th Cir. 1994); see also United States v. Davis, 932

F.2d 752, 762 (9th Cir. 1991) (“Renewal of the motion to sever was necessary in

this instance because the district court did not indicate that a renewal would be

fruitless.”). In failing to diligently pursue the motion, Lampkin waived appellate

review of this issue. See Davis, 932 F.2d at 762. Additionally, and critically,

because Trujillo ultimately pleaded guilty prior to trial and Lampkin was tried

alone, Lampkin cannot demonstrate he suffered any prejudice at trial.1

      AFFIRMED.




      1
        Even if we were to construe Lampkin’s severance argument as an
argument that the district court violated his right to a speedy trial under the Speedy
Trial Act, this argument fails, too. Under the statute, “[f]ailure of the defendant to
move for dismissal prior to trial . . . shall constitute a waiver of the right to
dismissal.” 18 U.S.C. § 3162(a)(2); see also United States v. Hall, 181 F.3d 1057,
1060 (9th Cir. 1999). Lampkin never moved to dismiss his case prior to trial based
on a speedy trial claim.

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