                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         MAR 3 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                         No.   15-30346

                  Plaintiff-Appellee,              D.C. No.
                                                   4:14-cr-00252-BLW-1
   v.

 FRANK LEWIS WHITE,                                MEMORANDUM *

                  Defendant-Appellant.

                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                      Argued and Submitted February 9, 2017
                               Seattle, Washington

Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.

        Appellant Frank Lewis White challenges his conviction and sentence for

being a felon in possession of a firearm. Following a jury trial, the district court

issued an 84-month sentence. White argues that the district court committed

reversible error by admitting into evidence a taped phone conversation between

White and his brother as an adoptive admission under Fed. R. Evid. 801(d)(2)(B).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
White also argues that his below-Sentencing Guidelines sentence is unreasonable

under the circumstances. We review both issues for abuse of discretion, United

States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004); United States v. Cruz-

Mendez, 811 F.3d 1172, 1175 (9th Cir. 2016), cert. denied, 137 S. Ct. 175 (2016),

and affirm.

      In October 2014, White was arrested on two outstanding arrest warrants.

The officer who executed the arrest asked White if he had anything illegal on his

person, to which White responded that he had marijuana in his pocket and a

handgun underneath a seat of the car. A subsequent search revealed a 9mm

handgun under the driver’s seat. White was charged with violating 18 U.S.C.

§ 922(g)(1) for being a person who had previously been convicted of a crime

punishable by imprisonment for more than one year, and who “knowingly

possess[ed] in and affecting [interstate] commerce, a firearm . . . .” The offense

carries a maximum penalty of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2).

      After his arrest, White spoke with his brother from jail. White was advised

that the call was being recorded. Over the course of the call, White’s brother told

him: “Yeah. I—I had a feeling that morning, man, when I was—remember, I

looked right at you. I said, ‘Leave the dog here and make sure you leave that

fucking gun here, man. I got a bad feeling about you going to town in the

daytime.’” White responded, “Well,” but his brother talked over him. The


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statement, if true, indicated that White knowingly possessed a firearm. White did

not deny or otherwise object to the statement at any point during the remainder of

the conversation. The district court admitted the conversation under Fed. R. Evid.

801(d)(2)(B) as an adoptive admission over defense counsel’s objection.

      Under Fed. R. Evid. 801(d)(2)(B), “[w]hen an accusatory statement is made

in the defendant’s presence and hearing, and he understands and has an opportunity

to deny it, the statement and his failure to deny are admissible against him.”

United States v. Moore, 522 F.2d 1068, 1075 (9th Cir. 1975). Before such

statement may be admitted and considered by the jury, “the trial judge must

determine, as a preliminary question, whether the statement was such that under

the circumstances an innocent defendant would normally be induced to respond.”

Id.

      The district court made the requisite preliminary finding. The court

considered whether White heard, understood, and acceded to his brother’s

statement, and accounted for the context of the two men talking over each other. It

then determined that this factual circumstance was one in which an innocent party

“would normally be expected to contradict or deny the statement if it was not true.”

While the court’s explanation could have been more thorough, we hold that it

satisfied its gatekeeping obligation to decide whether “sufficient foundational facts

ha[d] been introduced for the jury reasonably to infer that [White] did hear and


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understand the statement,” and that White “did accede to the accusatory

statement.” Id. at 1076; see also United States v. Monks, 774 F.2d 945 (9th Cir.

1985) (upholding admission of incriminating statement where defendant’s response

was silence).

      White also challenges his below-Guidelines sentence of 84 months. The

district court must accurately calculate the applicable Sentencing Guidelines range

(the parties do not dispute that it did so here), and then determine a sentence that

considers various statutory factors, including inter alia, the nature and

circumstances of the offense, the defendant’s history and characteristics, the

sentencing range under the guidelines, and the need to avoid sentencing disparities

with similarly situated individuals. United States v. Carty, 520 F.3d 984, 991 (9th

Cir. 2008) (citing 18 U.S.C. § 3553(a)).

      White argues that the district court erred in settling on his ultimate sentence

by reasoning that a further downward departure could result in a sentencing

disparity with “another defendant who has essentially done the same type of

conduct as [] White, but who has no prior criminal record.” White reasons that his

Guidelines range of 100 to 120 months was based on a total offense level of 24 and

criminal history category of VI, both of which accounted for his criminal past. In

contrast, an individual with a less significant criminal history would likely have a

base offense level of 12, would be placed in a lower criminal history category, and


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would face a much lower Guidelines range. See U.S.S.G. §§ 2K2.1, 4A1.1. As a

result, White argues that the hypothetical sentencing disparity on which the district

court relied would not occur, and that his sentence is therefore substantively

unreasonable.

      White’s argument is unavailing. Even were we to assume that the district

court committed procedural error by comparing White to someone with a

dissimilar criminal history, its below-Guidelines sentence is not substantively

unreasonable. See United States v. Ellis, 641 F.3d 411, 422–423 (9th Cir. 2011).

Because the district court “would be free on remand to impose exactly the same

sentence by exercising [its] discretion under the now-advisory guidelines,” what

ultimately matters for purposes of our review is substantive reasonableness, not

absolute fidelity to process. See id. at 421 (internal citation and quotation marks

omitted) (alteration in original); see also United States v. Mohamed, 459 F.3d 979,

987 (9th Cir. 2006) (“[I]t is the review for reasonableness, and not the validity of

the so-called departure [from the Guidelines], that determines whether the sentence

stands.”). Accordingly, we uphold the district court’s sentence.

      AFFIRMED.




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