                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 14 2010

                                                                        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,                        No. 10-30049

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00049-RRB-2

  v.
                                                 MEMORANDUM *
RODOLFO L. LASTIMOSA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                           Submitted December 9, 2010 **
                               Seattle, Washington

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.***



        *
             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).
        ***
            The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.

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      Rodolfo Lastimosa was convicted of drug conspiracy, distribution of

methamphetamine, attempt to possess and distribute methamphetamine, and

possession with intent to distribute methamphetamine under 21 U.S.C. §§ 846,

841(a)(1) and (b)(1)(c). He appeals his sentence of 66 months.

      The Sentencing Guidelines require district courts to consider as relevant

conduct “drug amounts from acts outside the offense of conviction, so long as they

‘were part of the same course of conduct or common scheme or plan as the offense

of conviction.’” United States v. Grissom, 525 F.3d 691, 697-98 (9th Cir. 2008)

(quoting U.S.S.G. § 1B1.3(a)). The district court did not clearly err when it

attributed to Lastimosa as relevant conduct four packages of methamphetamine

sent to his workplace. Lastimosa’s argument that the packages cannot be

considered relevant conduct because there was no finding or evidence that he was

part of the conspiracy at the time the packages were shipped in 2007 is without

merit. The jury was explicitly instructed that the conspiracy count related to

conduct beginning in 2006, and after hearing testimony that Lastimosa had been

regularly selling methamphetamine since 2006, it convicted Lastimosa on this

count. The fact that the packages were sent to Lastimosa’s workplace during the

operation of the conspiracy and packaged similarly to other drug shipments found


                                          2
to be attributable to the conspiracy was sufficient to allow them to be reasonably

deemed relevant conduct by a preponderance of the evidence. See U.S. v.

Restrepo, 946 F.2d 654, 661 (9th Cir. 1991); U.S.S.G. § 1B1.3 cmt. n. 9.

      Furthermore, even if we assume that it was error to consider the four

packages as relevant conduct, any such error was harmless. The district judge

adjusted Lastimosa’s sentence downward from the otherwise applicable Guideline

range in consideration of Lastimosa’s argument that the packages were not

attributable to him. As a result, the sentence actually imposed on Lastimosa

corresponded with a base offense level 24, which would have been the correct base

offense level had the drug quantity calculation excluded the disputed packages and

considered only the 1.8 grams of methamphetamine and 3.92 grams of actual

methamphetamine urged by Lastimosa. U.S.S.G. § 2D1.1(c)(8); id. at n. 10(B), n.

10(E). Given the district judge’s reasonable decision to sentence Lastimosa to

more time than the 63 months imposed on Seludo, Lastimosa’s sentence would not

have been any shorter even had the judge used an offense level of 24 as his starting

point. Therefore, any error in the offense level calculation was harmless. See

United States v. Cantrell, 433 F.3d 1269, 1280 n.4 (9th Cir. 2006) (offense level

calculation errors are harmless if “the district court could-and would-impose the

same sentence” regardless of the error) (internal quotation and citation omitted).


                                          3
      The district court did not err by not directly addressing Lastimosa’s

argument that the correctly-calculated criminal history category assignment of III

overstated his criminal history. The district judge indicated that he was aware of

Lastimosa’s argument as presented in his sentencing memorandum, and he listened

to Lastimosa’s attorney reiterate it at the sentencing hearing. When sentencing

Lastimosa, the judge found that he “remain[ed] a threat to the community,” which

is a consideration underlying whether a downward departure from a criminal

history category is appropriate, see U.S.S.G. § 4A1.3(b)(1). The judge then simply

found a criminal history category of III to be appropriate. The “context and

record” in this case provided an adequate explanation for the judge’s decision, and

he need not have said more, especially when the criminal history category

assignment accorded with the Guidelines. See Rita v. United States, 551 U.S. 338,

358-59 (2007); United States v. Carter, 560 F.3d 1107, 1119 (9th Cir. 2009)

(district court did not err by not specifically explaining why it rejected defendant’s

arguments for lower sentence); United States v. Amezcua-Vasquez, 567 F.3d 1050,

1053-54 (9th Cir. 2009).

      There is no indication that the district judge improperly presumed that the

Sentencing Guidelines were reasonable in contravention of Nelson v. United States,

129 S. Ct. 890, 892 (2009). To the contrary, after initially accepting the Guideline


                                           4
determination as outlined in the PSR, the judge noted that “[t]he guidelines are just

advisory, they no longer are mandatory, so I have to come up with a sentence that

is fair and appropriate under the circumstances.” He then chose a sentence 12

months below the Guideline range based on other factors, particularly the need to

be consistent with Seludo’s sentence for the same offenses. It is true that the judge

then adjusted his Guideline determination downward so that it would fit his chosen

sentence, rather than simply imposing the sentence as a downward departure from

the correctly-determined Guideline range. However, any procedural error in this

regard was harmless, because it did not impact the sentence, which he had already

determined. See Cantrell, 433 F.3d at 1280 n.4. The fact that the judge departed

downward from the initial Guideline range clearly indicates that he did not

presume that the Guideline sentence was reasonable. See Nelson, 129 S. Ct. at 892.

      Finally, the district court’s consideration and application of the factors in 18

U.S.C. § 3553(a) was adequate. It is clear from the judge’s comments at the

sentencing hearing that he considered the § 3553(a) factors, including the history

and characteristics of the defendant, the seriousness of the offense, the need for

deterrence, the need to protect the public, and the need to avoid unwarranted

sentencing disparities. Not every factor was specifically discussed, but “[t]he

district court need not tick off each of the §3553(a) factors to show it has


                                           5
considered them. We assume that district judges know the law and and understand

their obligation to consider all of the. . . factors.” Carty, 520 F.3d at 992. The

context and record in this case provide adequate explanation for the sentence

imposed. See id. at 992. Lastimosa argues that the judge should have weighed the

§ 3553(a) factors differently, but there is no indication that the judge abused his

discretion in weighing them as he did. See United States v. Gutierrez-Sanchez, 587

F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the [§ 3553(a)] factors in a

particular case is for the discretion of the district court.”).

AFFIRMED.




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