                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 10 2012

                                                                         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. 11-30089

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00112-EJL-1

  v.
                                                 MEMORANDUM *
JUSTIN LYLE IZATT,

              Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                              Submitted May 8, 2012 **
                                Seattle, Washington

Before: HAWKINS, BYBEE, and BEA, Circuit Judges.

       Justin Izatt appeals from his conviction and sentence for possession with

intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A). Izatt argues that the district court (1) erred in denying his motion to


        *
             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).
suppress evidence found after a search of his residence, (2) imposed a mandatory

life sentence in violation of the Eighth Amendment, and (3) abused its discretion in

admitting prior bad acts evidence under Fed. R. Evid. 404(b). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.1

                                 1. Motion to Suppress

      Izatt argues that the district court should have granted his motion to

suppress, because (1) the terms of his state probation, which allow the police to

search his residence, were “tolled” at the time of the search of his residence, and

(2) the police did not have reasonable suspicion to search his residence. We

review the district court’s denial of a motion to suppress de novo, and the

underlying factual findings for abuse of discretion. United States v. Mayer, 560

F.3d 948, 956 (9th Cir. 2009).

      At the time of the search of his residence, Izatt was on state probation for a

misdemeanor conviction for driving without privileges. As part of his probation

agreement, Izatt agreed to submit to warrantless searches. The terms of Izatt’s

probation were not tolled at the time of the search. Although the state government

had petitioned to have Izatt’s probation revoked, at the time of the search on



      1
         Because the parties are familiar with the facts of this case, we state them
only as necessary to explain our decision.

                                           2
February 3, 2010, Izatt was awaiting a hearing for a final decision on the proposed

termination of probation. Izatt cites State v. Harvey, 132 P.3d 1255 (Idaho Ct.

App. 2006), in support of his argument that the terms were tolled, but Harvey

stands only for the proposition that a probationer who breaks the terms of his

probation and avoids probationary supervision by leaving the state without

permission should not receive credit for probation time served. Id. at 1259.

Harvey does not hold that the terms of probation are tolled.2

                         2. Eighth Amendment Challenge

      Izatt argues that his mandatory life sentence, provided by 21 U.S.C.

§ 841(b)(1)(A), violates the Eighth Amendment’s ban on cruel and unusual

punishments. We review Eighth Amendment challenges to a sentence de novo.

United States v. Meiners, 485 F.3d 1211, 1212 (9th Cir. 2007) (per curiam).

      Izatt’s argument fails. The government filed a notice that it intended to seek

this sentencing enhancement prior to trial, pursuant to 21 U.S.C. § 851(a), as it was


      2
         We need not consider the question whether any suspicion is required for a
search of a probationer pursuant to a search condition because we conclude that the
police officers had reasonable suspicion to search Izatt’s residence. See United
States v. Knights, 534 U.S. 112 (2001). Izatt was found with a used
methamphetamine pipe on his person, the police had information from a
confidential informant that Izatt stored methamphetamine in his garage, Izatt’s
probation officer told the police that Izatt was likely using and dealing
methamphetamine, and Izatt was “increasingly nervous” and “shaking
uncontrollably” at the time of the arrest in front of his residence.

                                          3
required to do. Izatt’s sentence does not run afoul of the Eighth Amendment. See

Harmelin v. Michigan, 501 U.S. 957 (1991) (holding that a life sentence for a

single conviction of possessing 672 grams of cocaine did not violate the Eighth

Amendment); United States v. Jensen, 425 F.3d 698 (9th Cir. 2005) (upholding a

life sentence on similar facts where defendant was sentenced to life in prison after

two prior felony convictions).

                                 3. 404(b) Evidence

      We review the district court’s ruling to admit prior bad acts evidence under

Fed. R. Evid. 404(b) for abuse of discretion. United States v. Ramirez-Robles, 386

F.3d 1234, 1240 (9th Cir. 2004). Izatt argues that the district court abused its

discretion when it admitted “prior bad acts” evidence showing that Izatt had used a

purple Crown Royal bag to store drug paraphernalia in one of his prior felony drug

convictions.

      The district court was correct in stating that such evidence was relevant to

show a “common plan or scheme.” The evidence was also relevant to show modus

operandi, made the more relevant to this case because Izatt’s opening statement

claimed he had nothing to do with the methamphetamine found along with the

purple Crown Royal bag in the ceiling of his garage. Further, the district court was

correct that the evidence here met the four factors for the admissibility of 404(b)


                                          4
evidence outlined in Ramirez-Robles, 386 F.3d at 1242. First, it proves a material

element of the offense for which Izatt was charged, namely “ownership” or

“knowing possession” of the drugs. Second, Izatt’s prior conviction for possession

of amphetamine with intent to deliver is nearly identical to the crime charged here.

Third, Izatt’s prior actions resulted in a conviction, so there is sufficient evidence

that he indeed committed the crime. Fourth, the prior conviction was not too

remote in time: while over eight years had passed, this court has upheld the

introduction of prior bad acts evidence more remote in time. See United States v.

Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997).

      The evidence was also admissible under Rule 403. “As long as it appears

from the record as a whole that the trial judge adequately weighed the probative

value and prejudicial effect of proffered evidence before its admission . . . the

demands of Rule 403 have been met.” Boyd v. City and Cnty. of San Francisco,

576 F.3d 938, 948 (9th Cir. 2009) (quotation omitted). The record supports the

district court’s conclusion that the 404(b) evidence is “probative and is not unduly

prejudicial, as the Crown Royal bags go to the facts of this case, along with the

pipes, and do not go to the mere propensity of [Izatt] to commit a crime of this

nature.”

      AFFIRMED.


                                           5
