                                                                             FILED
                           NOT FOR PUBLICATION                               NOV 23 2010

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 09-30437

             Plaintiff - Appellee,              D.C. No. 6:09-cr-00004-CCL-3

       v.
                                                MEMORANDUM*
CHRISTIAN THOMAS GOCHIS,

             Defendant - Appellant.

UNITED STATES OF AMERICA,                       No. 09-30450

             Plaintiff - Appellee,              D.C. No. 6:09-cr-00004-CCL-2

       v.

DEVELIN EUGENE MOORE,

             Defendant - Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                   Charles C. Lovell, District Judge, Presiding

                     Argued and Submitted November 2, 2010
                                Portland, Oregon



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and FISHER, Circuit Judges, and BURY, District Judge.**

      Defendants Christian Gochis and Develin Moore appeal their convictions for

conspiracy to manufacture and distribute marijuana in violation of 21 U.S.C.

§ 846. Gochis also appeals his sentence. We affirm.

      1.     Gochis’ Conviction

      The district court did not err in giving a jury instruction addressing the

relationship of state and federal law on marijuana. The instruction accurately

characterized the law and did not convey any undue emphasis. See, e.g., Monsma

v. Cent. Mut. Ins. Co., 392 F.2d 49, 52 (9th Cir. 1968).

      As Gochis conceded during oral argument, the district court did not abuse its

discretion by denying Gochis’ motion for change of venue or continuance of trial

due to pretrial publicity. The pretrial publicity consisted of only a single

newspaper article, not a “barrage of inflammatory publicity,” the article did not

contain inflammatory prejudicial information and the article was factual in nature.

Randolph v. California, 380 F.3d 1133, 1142 (9th Cir. 2004) (quoting Ainsworth v.

Calderon, 138 F.3d 787, 795 (9th Cir. 1998)) (quotation marks omitted).

      2.     Gochis’ Sentence

      Gochis’ sentence was not disproportionate. He received the mandatory


       **
        The Honorable David C. Bury, United States District Judge for the District
of Arizona, sitting by designation.
minimum 60-month sentence – the same sentence given to Moore, who, like

Gochis, did not cooperate with the government. Although another co-defendant,

who cooperated with the government and testified against Gochis and Moore,

received a 13-month sentence for the same crime, a “sentencing disparity based on

cooperation is not unreasonable.” United States v. Carter, 560 F.3d 1107, 1121

(9th Cir. 2009).

      The district court did not abuse its discretion when it withheld application of

the 18 U.S.C. § 3553(f) safety valve. The district court based its decision on

Gochis’ persistent denial of involvement in the conspiracy, and failure to truthfully

provide the government with all information he had concerning the offenses,

despite evidence that Gochis was an active participant in the conspiracy. In

addition, the district court found there was credible evidence that Gochis organized

and supervised the marijuana grow operation. In sum, Gochis did not meet at least

two of the five criteria to qualify for safety valve application listed in 18 U.S.C.

§ 3553(f).

      3.     Moore’s Conviction

      Sufficient evidence supports Moore’s conviction because the evidence,

viewed in the light most favorable to the prosecution, demonstrated that Moore

agreed to move to Montana to work on a marijuana grow operation, helped set up

the greenhouse where the marijuana would be grown, traveled to California to help
bring marijuana plants back to Montana, personally tended to the plants and agreed

with his co-conspirators that he would receive a portion of the profits from the

marijuana’s sale. This evidence was sufficient to permit any rational trier of fact to

find the essential elements of the crime beyond a reasonable doubt. See United

States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

      The district court did not abuse its discretion by admitting into evidence

against Moore’s co-defendant, Gochis, a video depicting the marijuana grow

operation. The evidence was not more prejudicial than probative because it was

highly probative as to Gochis’ guilt and the district court instructed the jury the

evidence could be considered only against Gochis. See United States v.

Gallenardo, 579 F.3d 1076, 1082 (9th Cir. 2009) (“We . . . presume that the jury

followed the district court’s limiting instruction.”).

      AFFIRMED.




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