                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 08 2011

                                                                         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. 10-30000

               Plaintiff - Appellee,              D.C. No. 2:02-cr-00282-FVS

  v.
                                                  MEMORANDUM *
JULIUS DARNELL ROBERTS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of Washington
                    Fred L. Van Sickle, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Julius Darnell Roberts appeals from the 168-month sentence imposed upon

resentencing following his successful 28 U.S.C. § 2255 motion. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

       Roberts contends that the district court erred in several respects when it

          *
             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).
calculated the Guidelines range. First, he argues that the district court erroneously

applied an upward adjustment for obstruction of justice. On remand, the district

court was free to consider any matters relevant to resentencing. See United States

v. Matthews, 278 F.3d 880, 885-89 (9th Cir. 2002). Roberts’ attempt to flee,

coupled with other obstructive conduct, was sufficient to support application of the

adjustment. See United States v. Madera-Gallegos, 945 F.2d 264, 267 (9th Cir.

1991).

         Second, Roberts contends that the district court erroneously applied an

enhancement for possession of a firearm. Roberts fails to demonstrate that it was

“clearly improbable” that he possessed a firearm in connection with the offense.

See U.S.S.G. § 2D1.1 cmt., n. 3; see also United States v. Ferryman, 444 F.3d

1183, 1186 (9th Cir. 2006).

         Third, Roberts contends that the district court failed to consider whether the

Guidelines’ disparate treatment of crack versus powder cocaine justified a

downward variance based on the court’s policy disagreement with the Guidelines.

Because Roberts did not raise this contention in the district court, we decline to

address it for the first time on appeal. United States v. Flores-Payton, 942 F.2d

556, 558 (9th Cir. 1991).

         Finally, Roberts contends that the district court improperly included an


                                             2                                      10-30000
uncounseled misdemeanor conviction in its calculation of his criminal history

score. The district court did not err, let alone plainly err, because Roberts fails to

present any evidence that would overcome the presumption that there was a valid

waiver of counsel. See United States v. Allen, 153 F.3d 1037, 1041 (9th Cir.

1998).

         The district court did not procedurally err, and the sentence at the bottom of

the Guidelines range is substantively reasonable under the totality of the

circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

         Roberts’ motion to strike the government’s argument is denied.

         AFFIRMED.




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