                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 19 2009

                                                                        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. 08-10578

             Plaintiff–Appellee,             D.C. No. 1:08-CR-00139-LJO-1

  v.
                                             MEMORANDUM *
DEAON BAILES,

             Defendant–Appellant.



                  On Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                     Argued and Submitted November 4, 2009
                            San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

       Appellant Deaon Bailes appeals the district court’s judgment sentencing him

to a 24-month term of imprisonment and a 36-month term of supervised release for

having escaped from the non-secure custody of a “halfway” house. In calculating

Bailes’s sentencing range under the United States Sentencing Guidelines

(“Guidelines”), the court denied Bailes the four-level reduction in his offense level


       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
otherwise available to escapees from halfway houses on the ground that Bailes,

while at large, had committed a state offense punishable by imprisonment for more

than one year. See U.S.S.G. § 2P1.1(b)(3). The district court found that Bailes had

attempted to violate California Penal Code § 4573, which provides in pertinent part

that “any person, who knowingly brings . . . into any county, city and county, or

city jail . . . or within the grounds belonging to the institution, any controlled

substance . . . is guilty of a felony punishable by imprisonment in the state prison

for two, three, or four years.”1

      We have jurisdiction pursuant to 18 U.S.C. § 3742. Reviewing the

interpretation and application of the Guidelines de novo, United States v.

Charlesworth, 217 F.3d 1155, 1157 (9th Cir. 2000), we conclude that the district

court properly denied Bailes the four-level reduction.

      When reviewing a sentence, we first consider whether the district court

committed significant procedural error, and then consider the substantive

reasonableness of the sentence. United States v. Carty, 520 F.3d 984, 993 (9th

Cir.), cert. denied, 128 S. Ct. 2491 (2008). Factual findings by the district court


      1
         An attempted violation of § 4573 is punishable by imprisonment for a term
of one, one and one-half, or two years. See Cal. Penal Code § 664(a) (requiring
that any defendant judged guilty of an attempted offense be punished by
imprisonment for one-half the term of imprisonment prescribed upon a conviction
of the attempted offense).

                                            2
are reviewed for clear error and must be supported by a preponderance of the

evidence. Charlesworth, 217 F.3d at 1157-58. The operative questions in this case

are whether Bailes possessed a specific intent to bring marijuana onto the grounds

of Rio Cosumnes Correctional Center (“RCCC”) and, if so, whether he performed

a direct act in furtherance of that design. See Cal. Penal Code § 21a (prescribing

the elements of criminal attempt).

      At his sentencing hearing, Bailes testified that he had “forgotten” about the

marijuana in his pocket and that he never intended to bring marijuana onto the

RCCC’s grounds because his only purpose was to deliver a friend to the facility to

self-surrender. The district court, however, did not credit his statement that he had

forgotten about the marijuana, and found that Bailes’s own testimony indicates that

he intended to enter the RCCC’s parking lot, which was part of its grounds and was

marked by a plainly visible sign warning of § 4573. The reasons that Bailes had

for entering upon RCCC property in no way controvert the fact of his intention to

enter upon the property. Thus, the evidence in this case is more than sufficient to

support the district court’s finding that Bailes had the specific intent both to

possess a controlled substance and to bring it onto RCCC property.

      Similarly, Bailes’s argument that his conduct amounted to something less

than a direct act is plainly at odds with his own testimony. Bailes testified under


                                           3
oath that he fully intended to enter upon RCCC property and, but for the deputy at

the gatehouse, would have done so, marijuana in pocket. Where such a design is

clearly shown, even slight acts in furtherance of a design to commit a crime

constitute a bona fide attempt. People v. Superior Court, 157 P.3d 1017, 1022

(Cal. 2007).

      The sentence imposed by the district court is

      AFFIRMED.




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