                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-30183

                Plaintiff-Appellee,             D.C. No. 1:15-cr-00073-SPW

 v.
                                                MEMORANDUM*
MERRILL CLARK GARDNER, a.k.a.
Clark Gardner,

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                            Submitted August 9, 2017**

Before:      SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

      Merrill Clark Gardner appeals from the district court’s judgment and

challenges the 183-month sentence imposed following his guilty-plea conviction

for conspiracy to possess with intent to distribute methamphetamine, in violation

of 21 U.S.C. § 846. 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 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).
      Gardner contends that the district court erred by applying a four-level

aggravating role enhancement under U.S.S.G. § 3B1.1(a). We review the district

court’s factual findings for clear error and its application of the Guidelines to the

facts for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167,

1170 (9th Cir. 2017) (en banc). The district court did not abuse its discretion when

it concluded, based on the undisputed facts in the presentence report and the

testimony of Special Agent Robert Grayson, that Gardner acted as a leader or

organizer of the conspiracy within the meaning of section 3B1.1(a). See United

States v. Rivera, 527 F.3d 891, 908-09 (9th Cir. 2008) (enhancement supported

where evidence established that defendant exercised control over others and

“exercised decision making authority in the procurement and distribution of

narcotics”); see also United States v. Garcia, 497 F.3d 964, 970 (9th Cir. 2007)

(enhancement “does not require control over all of the five or more participants”).

      AFFIRMED.




                                           2                                    16-30183
