                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAR 31 2014

                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                         No. 12-10386

              Plaintiff-Appellee,                 D.C. No. 2:10-cr-565-RLH-PAL
                                                  District of Nevada
  v.
                                                  MEMORANDUM*
NICHOLAS BICKLE,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Roger L. Hunt, District Judge, Presiding

                     Argued and Submitted March 14, 2014
                             San Francisco, California

Before: WALLACE, GOULD, Circuit Judges, and HUCK, District Judge.**

       Nicholas Bickle, a former United States Navy SEAL, was convicted of

thirteen counts related to illegally importing and selling military firearms. The

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Paul C. Huck, District Judge for the U.S. District
Court for the Southern District of Florida, sitting by designation.
district court sentenced him to 210 months imprisonment. Bickle challenges his

sentence as unreasonable, arguing that the district court failed to grant a downward

departure and variance based on his suffering a military discharge and his service-

related disability, and that the district court violated Apprendi v. New Jersey, 530

U.S. 466 (2000), by enhancing his sentence based on the number of weapons

involved in his crimes.

      We review the district court’s interpretation of the Sentencing Guidelines de

novo and its factual findings for clear error. United States v. Swank, 676 F.3d 919,

921 (9th Cir. 2012). There is an intracircuit conflict as to whether the standard of

review for application of the Guidelines to the facts is de novo or abuse of

discretion. Id. at 921-22. Where the standard of review is not case dispositive, there

is no need for us to resolve the conflict. Id. at 922. We review Bickle’s actual

sentence for procedural and substantive reasonableness, under an abuse of

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

banc). We review Bickle’s Apprendi claim de novo, because he raised it before the

district court. United States v. Dare, 425 F.3d 634, 638 (9th Cir. 2005). We have

jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and

affirm.

      The district court did not abuse its discretion in its consideration of the effect

of Bickle’s military discharge. The district court stated it gave careful
consideration to the memorandum filed by defendant’s counsel, which included

information and argument about Bickle’s discharge. Thus, the district court did not

commit procedural error. United States v. Daniels, 541 F.3d 915, 921–22 (9th Cir.

2008). Nor did the district court abuse its discretion in not departing or granting a

variance from the Sentencing Guidelines. United States v. Asberry, 394 F.3d 712,

720 (9th Cir. 2005); see also United States v. Ruiz-Apolonio, 657 F.3d 907, 916

(9th Cir. 2011).

      The district court did not err in refusing to depart from the Sentencing

Guidelines because of Bickle’s post-traumatic stress disorder. Bickle argued before

the district court and here that his service-related condition gave him diminished

mental capacity. The district judge found nothing in the record to support Bickle’s

argument that he suffered from diminished capacity because of his military service,

and thus during commission of his offenses, rather than because of his arrest after

commission of the offenses. Regardless, Bickle carefully planned his crimes. Post-

traumatic stress disorder may mitigate culpability for spontaneous criminal

conduct, but usually cannot mitigate culpability for carefully planned

conspiratorial conduct like these crimes. The district court thus did not err by

refusing to depart from the Sentencing Guidelines. Asberry, 394 F.3d at 720.

      We also affirm the district court to the extent Bickle challenges the jury

instruction as improper because the instruction correctly allowed the jury to
convict him based on a disjunctive charge. Turner v. United States, 396 U.S. 398,

420–21 (1970) (“when a jury returns a guilty verdict on an indictment charging

several acts in the conjunctive . . . the verdict stands if the evidence is sufficient

with respect to any one of the acts charged”).

       Finally, the district court did not violate Apprendi by assessing a sentence

enhancement for the number of weapons Bickle trafficked. The district court

instructed the jury that it only needed to find that Bickle committed the offense

with respect to a single weapon, which, he argues, means the judge made factual

findings that additional weapons were involved. Bickle’s 210-month sentence does

not exceed the statutory maximum for his crimes, so application of the

enhancement did not violate Apprendi. United States v. Chavez, 611 F.3d 1006,

1009 (9th Cir. 2010); 18 U.S.C. § 924(a)(2) (“Whoever knowingly violates

subsection . . . (j), or (o) of section 922 shall be . . . imprisoned not more than 10

years . . . ”).

       AFFIRMED.
