                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             OCT 04 2016

                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA                          No. 15-30165

              Plaintiff - Appellee,               D.C. No. 2:14-cr-00232-JLR(1)

  v.
                                                  MEMORANDUM*
DAVID SCHULTZ, II,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington,
                     James L Robart, District Judge, Presiding

                       Argued and submitted August 29, 2016
                               Seattle, Washington

Before: MCKEOWN , HAWKINS, CIRCUIT JUDGES, and EZRA,** District
Judge.

       David Schultz appeals his 108-month sentence of imprisonment. He raises

three issues on appeal: (1) whether the district court erred in finding that he was a

supervisor and applying a two-level enhancement Sentencing Guideline; (2)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable David Alan Ezra, Senior United States District Judge
for the District of Hawaii, sitting by designation.
whether the district court erred in considering at sentencing a state criminal

conviction that occurred subsequent to the instant offense; and (3) whether his

sentence is substantively unreasonable. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

      Because the parties are familiar with the facts of the case, we do not recite

them except to the extent necessary to aid in understanding this deposition.

I. The Supervisor Enhancement

      A finding that a defendant was an organizer, leader, or supervisor is a factual

finding reviewed for clear error. United States v. Rivera, 527 F.3d 891, 908 (9th

Cir. 2008). A finding of fact is clearly erroneous “if it is (1) illogical, (2)

implausible, or (3) without support in inferences that may be drawn from the facts

in the record.” United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir. 2012)

(quoting Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1087

(9th Cir. 2011)).

      The Guidelines apply a two-level enhancement to the base offense level “[i]f

the defendant was an organizer, leader, manager, or supervisor” in the offense of

conviction. USSG § 3B1.1(c). “A single incident of persons acting under a

defendant’s direction is sufficient evidence to support a two-level role

enhancement.” United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir. 2000).


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       Here, the district court applied the § 3B1.1(c) enhancement because it found

that Schultz “was the instructor, the teacher, and the supervisor” of the hash oil

manufacturing process. There is sufficient evidence in the record to conclude that

the district court did not commit clear error in finding Schultz to be a supervisor.

Schultz conceded that he was teaching Kaplan and Strycharske how to

manufacture hash oil; in so doing, Schultz implicitly admits that he exercised

control over them, at least during the periods of instruction. Accordingly, the

district court did not clearly err in finding that Schultz was a supervisor.

II. Consideration of Schultz’s California Conviction

       (A) The USSG §§ 5G1.3 and 5K2.23 Motion

       Where an appellant argues that a district court committed a procedural error

for failure to adequately address all arguments offered to the court, but did not

object to this at sentencing, the standard of review is for plain error. United States

v. Rangel, 697 F.3d 795, 805 (9th Cir. 2012). “Plain error is (1) an error that (2) is

plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity

or public reputation of judicial proceedings.” United States v. Blinkinsop, 606 F.3d

1110, 1114 n.2 (9th Cir. 2010) (citing United States v. Olano, 507 U.S. 725, 732

(1993)).

       Schultz contends that the district court erred by not addressing his motion


                                        Page 3 of 6
for a downward departure pursuant to USSG §§ 5G1.3 and 5K2.23, based on the

time he had served in California for his state conviction. Section 5G1.3 only

requires a downward adjustment where a defendant is serving an undischarged

term of imprisonment for an offense constituting “relevant conduct” to the instant

offense. Here, there is no evidence that Schultz’s California conviction constituted

“relevant conduct” to his federal offenses as defined by the Guidelines.

Accordingly, Schultz’s motion for a downward departure pursuant §5G1.3(b) was

frivolous. Likewise, Schultz’s § 5K2.23 argument is frivolous because it is only

applicable where “§ 5G1.3 . . . would have provided an adjustment.” Accordingly,

the district court did not plainly err in failing to specifically address this frivolous

argument.

       (B) Consideration of State Conviction During § 3553(a) Analysis

       Schultz argues that the district court improperly considered his California

conviction as an aggravating factor under § 3553(a), because he also received two

criminal history points for that conviction.

       “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].’” United States v. Boykin,

785 F.3d 1352, 1363 (9th Cir. 2015) (quoting United States v. Brown, 985 F.2d


                                       Page 4 of 6
478, 481 (9th Cir. 1993)) (emphasis in original) (alterations in original). The

district court commented during its § 3553(a) analysis that Schultz’s criminal

history score did not adequately reflect the fact that Schultz re-engaged in the exact

conduct that caused the explosion only nine months after that tragic event. Any

conduct resulting in a sentence of imprisonment for more than sixty days would

have caused Shultz to receive two criminal history points. See USSG § 4A1.1. It

was not an abuse of discretion for the district court to vary upward as a result of the

California conviction because the temporal proximity between the two episodes

demonstrated Schultz’s lack of respect for the rule of law and his threat to the

public’s safety. See United States v. Reyes, 764 F.3d 1184, 1198–99 (9th Cir.

2014).

III. Substantive Reasonableness of the Sentence

      Lastly, Schultz challenges the substantive reasonableness of his sentence.

We review “the substantive reasonableness of a criminal sentence under what the

Supreme Court has described as ‘the familiar abuse-of-discretion standard of

review.’” United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (quoting

Gall v. United States, 552 U.S. 38, 46 (2007)). “A substantively reasonable

sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish

§ 3553(a)(2)’s sentencing goals.” United States v. Crowe, 563 F.3d 969, 977 n.16


                                      Page 5 of 6
(9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)). “In determining substantive

unreasonableness, we are to consider the totality of the circumstances, including

the degree of variance for a sentence imposed outside the Guidelines range.”

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (citing Gall, 552 U.S. at

51)) (en banc).

      Schultz’s calculated offense level resulted in a Guidelines range between 33

to 41 months. The district court departed upward and sentenced Schultz to 108

months, or nine years, imprisonment. This 67-month upward departure from the

high end of the Guidelines’ range was reasonable given the totality of the

circumstances. The district court gave detailed and adequate reasons based on the

§ 3553(a) factors which were supported by the record. The ultimate sentence

remained within the statutory maximum, and the district court did not abuse its

discretion.

      AFFIRMED.




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