                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 23 2010

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

UNITED STATES OF AMERICA,                        No. 07-30281

              Plaintiff - Appellee,              D.C. No. CR-06-00028-JDS

  v.
                                                 MEMORANDUM*
GREGORY R. BOYD,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-30254

              Plaintiff - Appellee,              D.C. No. 1:06-cr-00028-JDS-1

  v.

GREGORY R. BOYD,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Montana
                   Jack D. Shanstrom, District Judge, Presiding

                        Argued and Submitted May 4, 2010
                               Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW and GOULD, Circuit Judges, and MILLS, Senior District
Judge.**

      Gregory Boyd challenges his conviction of possession of methamphetamine

with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), possession of a

firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c),

and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1),

as well as the resulting 420-month sentence. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

      Boyd argues that the Government violated his rights under the Speedy Trial

Act by colluding with state authorities to delay his state prosecution as a “ruse” to

buy time until a federal indictment could be obtained. See United States v. Benitez,

34 F.3d 1489, 1493 (9th Cir. 1994). After a full evidentiary hearing, the district

court concluded, “any delays in the state prosecution were done in good faith and

reflect no efforts to bypass the Speedy Trial requirements.” The evidence adduced

at the hearing demonstrates that before December 2005, Ms. Kolar—the state

district attorney charged with prosecuting Boyd—was uncertain whether a federal

indictment against Boyd would issue. The record also shows that she was ready,




       **
             The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.

                                          2
willing, and able to proceed with Boyd’s state trial in November 2005 but that

Boyd’s pre-trial motions resulted in delay of the trial date.

      That Ms. Kolar began to serve in December 2005 as both the state district

attorney prosecuting Boyd and the Special Assistant United States Attorney

investigating potential federal charges against Boyd based on the same conduct is

more troubling. However, at the evidentiary hearing Ms. Kolar testified that even

after she assumed her federal role she was uncertain whether the federal case

against Boyd would proceed and that, as a result, she continued to pursue the state

charges in good faith. This testimony is supported by the fact that Ms. Kolar was

prepared to proceed to trial on the state charges in early February 2006. Thus,

while we disapprove of the practice of the same prosecutor pressing

simultaneously both state and federal charges arising from the same conduct,1 we

conclude that the district court did not clearly err in finding that no collusion

occurred here. United States v. Pena-Carrillo, 46 F.3d 879, 883 (9th Cir. 1995).

      Boyd next argues that the district court abused its discretion in admitting

evidence that he overdosed on drugs (including methamphetamine) on the day of

his arrest and had previously participated in methamphetamine trafficking.

      1
        At very least such a practice gives rise to the appearance of impropriety. It
is no surprise, therefore, that the Government averred at argument that the United
States Attorney’s office in Montana has discontinued this practice.

                                           3
However, under Federal Rule of Evidence 404(b), this prior act evidence was

admissible to demonstrate that Boyd had knowledge that the drugs were in his car.

See United States v. Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir. 1993); United

States v. Hegwood, 977 F.2d 492, 497 (9th Cir. 1992). Additionally, neither the

drug overdose nor the prior participation in methamphetamine trafficking were too

remote in time from the charged conduct and the Government provided a sufficient

basis from which to conclude that both activities occurred. See United States v.

Dhingra, 371 F.3d 557, 566 (9th Cir. 2004); United States v. Rude, 88 F.3d 1538,

1550 (9th Cir. 1996). Finally, because this evidence “tend[s] to make the existence

of the defendant’s knowledge more probable than it would be without the

evidence,” both the drug overdose and prior drug trafficking activity were

sufficiently similar to the charged conduct for admission under Rule 404(b).

United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005). Accordingly, the district

court did not abuse its discretion in admitting this evidence.

      Nor did the district court err in denying Boyd’s motion for a judgment of

acquittal pursuant to Federal Rule of Criminal Procedure 29. Viewing the

evidence in the light most favorable to the Government, we conclude that there was

ample evidence from which a rational jury could have convicted Boyd. See United

States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc). Both the firearms


                                          4
and methamphetamine were found in the trunk of a car that was not only driven by

Boyd but was also registered to him. His fingerprint was found on the bag

containing individually wrapped packages of methamphetamine. The arresting

officers testified that during the stop Boyd acted nervously as if ready to flee. The

jury heard medical testimony showing that Boyd had overdosed on drugs,

including methamphetamine, around the time of his arrest. Additionally, after his

release from the hospital, he was rearrested and was found in possession of a drug

ledger that recorded drug transactions in amounts roughly corresponding to the

quantity of drugs found in the car. Boyd challenges this evidence by pointing to

evidence of innocent explanations for the inculpatory evidence. The jury,

however, chose not to credit the exculpatory evidence and we will not disturb the

jury’s determination. United States v. Delgado, 357 F.3d 1061, 1068–70 (9th Cir.

2004).

      Finally, the district court did not err in sentencing Boyd to 420 months in

prison. Procedurally, Boyd does not dispute that the district court correctly

calculated the applicable Guideline range to include the Career Offender provision

contained in U.S.S.G. § 4B1.1. Contrary to Boyd’s assertion, the district court did

not presume impermissibly that this Guideline range was reasonable. See United

States v. Carty, 520 F.3d 984, 990 (9th Cir. 2008) (en banc). Rather, it recognized


                                          5
the Guidelines as advisory and, after considering the 18 U.S.C. § 3553(a) factors,

found them reasonable “under the circumstances.” Additionally, because the

district court “‘listened to [Boyd’s] argument’ and ‘then simply found these

circumstances insufficient to warrant a sentence lower than the Guidelines range,’”

the district court adequately explained its within-Guidelines sentence. United

States v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir. 2009) (quoting Rita v.

United States, 551 U.S. 338, 358 (2007)). Therefore, Boyd’s sentence is free from

procedural error.

      Boyd argues that the district court imposed a substantively unreasonable

sentence by failing to deviate from the Guidelines. We disagree. The district court

considered the § 3553(a) factors and reasonably recognized the severity of

possessing not only large quantities of methamphetamine with an intent to

distribute, but also two firearms in furtherance of this trafficking activity. It

additionally found that Boyd’s prior history of drug offenses, as well the fact that

Boyd perpetrated the instant offense while on parole from the California

Department of Corrections, implicated the need to impose a sentence which

promoted a respect for the law. In light of these circumstances, we conclude that

the district court did not abuse its discretion in sentencing Boyd to 420 months in

prison. See Carty, 520 F.3d at 993.


                                           6
AFFIRMED.




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