                                                                              FILED
                           NOT FOR PUBLICATION                                APR 29 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30068

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00120-JDS-1

  v.
                                                 MEMORANDUM*
ALI DWAYNE KHAN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                Jack D. Shanstrom, Senior District Judge, Presiding

                            Submitted April 11, 2014**
                               Seattle, Washington

Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.

       Defendant-Appellant Ali Dwayne Khan appeals his convictions for

conspiracy to possess methamphetamine with intent to distribute; possession with

intent to distribute methamphetamine; and possession of firearms in furtherance of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
a drug trafficking crime. Khan also appeals his sentence and the district court’s

refusal to award him a downward sentencing adjustment.

      During Khan’s trial, the admission of testimony regarding his prior

conviction was error. Its erroneous admission is harmless if the “government

provides a fair assurance that the error did not substantially sway the verdict.”

United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir. 2005). Here, the jury

watched a video of the drug transaction which pictured Khan and captured his

words; it also heard extensive testimony about Khan’s involvement in the drug

transaction. We conclude that the reference to Khan’s status as a felon did not

substantially sway the verdict.

      We review for clear error the district court’s determination that Khan did not

accept responsibility for purposes of a downward sentencing adjustment. United

States v. Cantrell, 433 F.3d 1269, 1284 (9th Cir. 2006). Here, the district court did

not commit clear error in refusing to award a downward adjustment for acceptance

of responsibility after considering Khan’s assault on a guard while in custody and

his conviction on three counts to which he had pleaded not guilty. The substantive

reasonableness of a sentence is reviewed for abuse of discretion. United States v.

Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). The district court

articulated its reasons for imposing Khan’s sentence and these reasons are not


                                          2
illogical, implausible, or without support in inferences that can be drawn from the

record. See id., n. 8. The district court did not abuse its discretion. We therefore

affirm the district court.

       AFFIRMED.




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