                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                             FILED
                           FOR THE NINTH CIRCUIT
                                                                              SEP 05 2018
UNITED STATES OF AMERICA,                       No.    17-30138           MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


             Plaintiff-Appellee,                D.C. No.
                                                1:15-cr-00147-SPW-2
 v.

GARY LEE QUIGG,                                 MEMORANDUM*

             Defendant-Appellant.



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

                           Submitted August 31, 2018**
                              Seattle, Washington

Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.

      Appellant Gary Lee Quigg (“Quigg”) appeals his conviction and sentence for

conspiracy to possess with intent to distribute methamphetamine, possession with

intent to distribute methamphetamine, and distribution of methamphetamine. 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).
      There was sufficient evidence produced at trial to convict Quigg on all counts.

We must view the evidence in the light most favorable to the prosecution, and affirm

if any rational trier of fact could find the elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Although Quigg took the stand

and offered an explanation which largely placed the blame on his wife as a user, the

jury was free to disbelieve his testimony and instead credit that of co-conspirator

Mendonsa, who testified she and her husband were involved in a conspiracy to

purchase methamphetamine from California every month and distribute 10-15 ounces

to Quigg and his wife for further sale and distribution. This testimony, coupled with

Quigg’s participation in a controlled purchase by law enforcement, and various

conversations about obtaining more methamphetamine, was sufficient to support the

jury’s verdict.

      The district court did not violate Apprendi 1 or contradict the jury’s findings by

using the guideline sentencing range for pure methamphetamine. The jury was

properly asked to determine the quantity of drugs involved, as this affects the statutory

penalty imposed; here, the jury concluded Quigg was responsible for “at least 50

grams” or more of a substance “containing a detectible amount of methamphetamine.”

The only drugs seized in this case tested 98.2% pure, and there was no contrary


      1
          Apprendi v. New Jersey, 530 U.S. 466 (2000).
                                           2
evidence submitted that other deliveries involved less pure substances; it was not

clear error for the court to extrapolate that purity to the quantity found by the jury.

United States v. Lopes-Montes, 165 F.3d 730, 732 (9th Cir. 1999) (“[U]sing the purity

of drugs actually seized to estimate the purity of the total quantity of drugs the

defendant agreed to deliver is an appropriate method of establishing the base

[guideline] offense level.”).

      The district court did not abuse its discretion by denying Quigg’s request for

a minimal or minor role reduction. To qualify for the reduction, the defendant must

establish he was “substantially less culpable” than the average participant. U.S.S.G.

§ 3B1.2(a). Again, although Quigg attempted to paint his wife as the main participant,

there was contrary evidence that Quigg and Whitehouse were both involved with

Mendonsa.

      AFFIRMED.




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