                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                             FILED
                           FOR THE NINTH CIRCUIT                              AUG 28 2013

                                                                          MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 12-30315               U.S. COURT OF APPEALS



              Plaintiff - Appellee,              D.C. No. 3:12-cr-00022-JKS-1

  v.
                                                 MEMORANDUM*
DUANE BYRON FIELDS, Jr.,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Alaska
                James K. Singleton, Senior District Judge, Presiding

                      Argued and Submitted August 14, 2013
                               Anchorage, Alaska

Before:       KOZINSKI, Chief Judge, BERZON and IKUTA, Circuit
              Judges.

       1. The quantity of cocaine subjecting Fields to increased penalties for his

conspiracy conviction was properly “charged in the indictment, submitted to the

jury, subject to the rules of evidence, and proved beyond a reasonable doubt.”

United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc); see also


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                              page 2
Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2155 (2013). The 439

grams found on his person and in his trailer, together with the other evidence of the

conspiracy’s drug-dealing activities, was ample to support the jury’s special verdict

that the conspiracy involved at least 500 grams. See United States v. Reed, 575

F.3d 900, 923 (9th Cir. 2009).


      2. Fields’s acquittal on the firearm charge didn’t preclude the sentencing

judge from considering the gun in applying a two-level enhancement. See United

States v. Watts, 519 U.S. 148, 157 (1997) (per curiam). Fields didn’t prove it was

“clearly improbable” that his gun possession was connected to his crimes, so the

enhancement was properly applied. United States v. Ferryman, 444 F.3d 1183,

1186 (9th Cir. 2006); see also U.S.S.G. § 2D1.1 cmt. n.11.


      3. Application of the managerial role enhancement to Fields’s sentence was

also proper. U.S.S.G. § 3B1.1(c). He twice sent others to deliver cocaine. Even if

these were the only times Fields exerted control over others, they qualify him for

the aggravating role enhancement. See, e.g., United States v. Maldonado, 215 F.3d

1046, 1050 (9th Cir. 2000).


      AFFIRMED.
