                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 27 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10258

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00087-JAM-1
 v.

NICHOLAS MICHAEL TEAUSANT,                      MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                     Argued and Submitted October 17, 2017
                           San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and MCSHANE,** District
Judge.

      Nicholas Teausant appeals a sentence of 144 months imposed for a

conviction for attempting to provide material support or resources to a foreign

terrorist organization in violation of 18 U.S.C. § 2339B(a)(1). We affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
      1. Unless another guideline section expressly covers an attempted offense,

the appropriate base offense level for an attempt is the generic attempt guideline

found in U.S.S.G. § 2X1.1. United States v. Simon, 858 F.3d 1289, 1291 (9th Cir.

2017) (en banc). Here, the district court applied U.S.S.G. § 2M5.3,1 the guideline

section for substantive offenses under 18 U.S.C. § 2339B. The court erred, because

there is no express provision in the application notes or commentary to the

guidelines that directs the sentencing court to apply § 2M5.3 to attempted offenses

under 18 U.S.C. § 2339B.

      2. However, “[w]hen an alleged error is harmless, it is not a ground for

resentencing.” United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (citation

and internal quotation marks omitted). Teausant argues that under § 2X1.1, he

would have been entitled to a three level reduction in his guideline calculation.

Even assuming the application of that reduction, the resulting guideline range of

262 to 327 months is still well above the statutory maximum sentence of 15 years

(180 months) for offenses under 18 U.S.C. § 2339B(a)(1) (2009) (amended to 20

years in 2015). The district court made clear that, because the guideline calculation

led to a range in excess of the statutory maximum penalty, “as a matter of law, the

15-year maximum sentence becomes the guideline range.” It is plain from the

1
 At the time of sentencing, Simon had not been decided and the sentencing court
applied the reasoning found in United States v. Hernandez-Franco, 189 F.3d 1151
(9th Cir. 1999). Simon expressly overruled Hernandez-Franco. 858 F.3d at 1298.


                                          2
record that whether the district court calculated the guideline range under § 2X1.1

or § 2M5.3, it would have adjusted the advisory guideline range to 15 years and

then gone on to consider the factors under 18 U.S.C. § 3553(a) that warranted a

variance: “It is not my intention to impose a 15-year prison term, but to grant a

variance in this case under that 3553(a) factor.” P.43, lines 10-11. Any error in

using the wrong guideline was therefore harmless.

      3. A sentence of 144 months is not substantively unreasonable. The district

court clearly recognized its discretion under Kimbrough v. United States, 552 U.S.

85 (2007), to vary from the guidelines based on a policy disagreement with the

terrorism enhancement found in U.S.S.G. § 3A1.4. Indeed, the court chose to offset

the harshness of the enhancement through consideration of 18 U.S.C. § 3553(a)

factors. ER Pages 14 to 15. After reviewing an extensive record that included

Teausant’s three mental health evaluations, and after considering all factors set

forth in 18 U.S.C. § 3553(a), the court determined that a 36 month variance from

the statutory maximum was appropriate.

      AFFIRMED.




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