                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        Nos. 08-30469, 08-30470

             Plaintiff - Appellee,               D. Ct. No. 1:07-CR-00112-RFC-1,
                                                 D. Ct. No. 1:07-CR-00015-RFC-1
  v.

FRITZ ANDERSON,                                  MEMORANDUM *

             Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Richard F. Cebull, District Judge, Presiding

                                                         **
                           Submitted December 8, 2009
                                 Portland, Oregon

Before: FARRIS, D.W. NELSON, and BERZON, Circuit Judges.

       Fritz Anderson was charged with 29 counts of drug trafficking in violation

of 21 U.S.C. § 841 and one count of using, carrying or possessing a firearm in

relation to drug trafficking in violation of 18 U.S.C. § 924(c). Anderson moved for



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
acquittal on the final count; the district court granted the motion as to using or

carrying a firearm but denied the motion as to possessing a firearm in furtherance

of a drug crime and let the count stand. The jury convicted Anderson on all thirty

counts, and the court imposed a sentence of 40 years (480 months). Anderson

timely appealed.

      “[W]e review the district court’s denial of a motion to acquit de novo.”

United States v. Mosley, 465 F.3d 412, 415 (9th Cir. 2006). “[A] defendant who

accepts firearms in exchange for drugs possesses the firearms ‘in furtherance of’ a

drug trafficking offense.” United States v. Mahan, No. 08-30475, slip op. at 8 (9th

Cir. Nov. 16, 2009). Because Anderson accepted firearms as partial payment for

outstanding drug debts, he possessed those firearms in furtherance of his drug

trafficking offenses, and the district court was correct to deny his motion to acquit.

      The substantive reasonableness of a sentence is reviewed under an abuse of

discretion standard. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc). “For a non-Guidelines sentence, we are to ‘give due deference to the district

court's decision that the § 3553(a) factors, on a whole, justify the extent of the

variance.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Nothing in

the record suggests that Judge Cebull abused his discretion when he departed

downward significantly, but not as far as Mr. Anderson would have preferred, from

the guideline sentence.

                                           2
AFFIRMED.




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