                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50243

                Plaintiff-Appellee,             D.C. No. 8:14-cr-00083-CJC-1

 v.
                                                MEMORANDUM*
SEAN LIBBERT,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                          Submitted November 13, 2018**
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and AMON,*** District Judge.

      Sean Libbert was sentenced to ten years of imprisonment followed by three

years of supervised release after pleading guilty to conspiracy to import and resell



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
analogues of “JWH-018,” a synthetic cannabinoid from China. At sentencing, the

district court applied a four-level aggravated role enhancement pursuant to United

States Sentencing Guideline § 3B1.1(a) due to Libbert’s role as an organizer or

leader of the conspiracy, and an associated two-level specific offense enhancement

pursuant to U.S.S.G. § 2D1.1(b)(15)(C) because Libbert was directly involved in the

importation of a controlled substance. Libbert now appeals his sentence, arguing

that the district judge improperly applied both enhancements. For the reasons stated

below, we affirm.

      Section 3B1.1(a) of the United States Sentencing Guidelines provides for a

four-level increase of a defendant’s offense level if he or she “was an organizer or

leader of a criminal activity that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a). “A court may impose this enhancement if there is

‘evidence that the defendant exercised some control over others involved in the

commission of the offense or was responsible for organizing others for the purpose

of carrying out the crime.’” United States v. Whitney, 673 F.3d 965, 975 (9th Cir.

2012) (quoting United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007)). This

Court “review[s] for clear error a district court’s determination that a defendant was

an ‘organizer or leader’ for purposes of enhancement under U.S.S.G § 3B1.1.”

United States v. Berry, 258 F.3d 971, 977 (9th Cir. 2001).




                                          2
      Contrary to Libbert’s contentions, the district court clearly articulated that

Libbert was an organizer or leader of the conspiracy because he exercised control

over other criminal participants.     This conclusion was premised on findings

consistent with the facts stipulated to by both parties in Libbert’s plea agreement.

Those facts included email communications where: (1) a co-conspirator deferred to

Libbert’s direction with respect to the amount of material to purchase to produce

synthetic cannabinoids, and (2) Libbert gave explicit instructions with respect to the

movement of profits of the conspiracy between bank accounts. ER 256–57. Because

this evidence supported the conclusion that Libbert exercised control over others,

the district court’s determination that Libbert was an organizer or leader and

application of the four-level enhancement was not clearly erroneous. United States

v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010) (describing clear error as a finding that

was “illogical, implausible, or without support in the record”).

      Libbert further argues that the application of the § 3B1.1(a) enhancement

violated both Federal Rule of Criminal Procedure 32 and the due process clause

because the district court did not provide him with adequate notice of the factual

basis that it intended to rely upon to apply the enhancement. This argument was

unpreserved and is reviewed for plain error. United States v. Christensen, 732 F.3d

1094, 1101 (9th Cir. 2013). The district court did not plainly err. Libbert cites to no

authority, nor are we aware of any, that requires a district court to provide notice of


                                          3
how it plans to interpret the factual record before making a sentencing guideline

decision. Although Rule 32(h) requires notice prior to a district court making a

guideline departure, Irizarry v. United States, 553 U.S. 708, 715 (2008), there was

not a guideline departure in this case.

        Libbert also contests the district court’s application of a specific offense

characteristic enhancement pursuant to U.S.S.G. § 2D1.1(b)(15)(C). Section

2D1.1(b)(15)(C) requires a two-level enhancement “if the defendant receives an

adjustment under § 3B1.1 (Aggravating Role) and . . . the defendant was directly

involved in the importation of a controlled substance . . . .”                  U.S.S.G.

§ 2D1.1(b)(15)(C) (2016).1 Libbert contends that the plain language of this section

limits the enhancement to the importing of “controlled substances,” and he was

convicted of importing “controlled substance analogues.” This Court reviews the

district court’s interpretation of the Sentencing Guidelines de novo. United States v.

Martinez, 870 F.3d 1163, 1165 (9th Cir. 2017). We find that the district court

appropriately applied the enhancement. Application Note 6 to § 2D1.1 expressly

instructs that “[a]ny reference to a particular controlled substance includes . . . except

as otherwise provided, any analogue of that controlled substance.” U.S.S.G. §2D1.1

cmt 6. This Note was added “to provide a uniform mechanism for determining

sentences in cases involving analogues or controlled substances not specifically


1
    This language now appears in U.S.S.G. § 2D1.1(b)(16)(C).

                                            4
referenced” in the guidelines.    U.S.S.G. Supp. App. C, Amdt. 667 (effective

November 1, 2004), at 84–85. To accept Libbert’s argument and construe §

2D1.1(b)(15)(C) to apply to importing controlled substances but not controlled

substance analogues would contravene the intent of the Sentencing Commission —

that controlled substances and controlled substance analogues be treated the same at

sentencing. It would also disregard a primary purpose of the Sentencing Guidelines,

Hughes v. United States, 138 S.Ct 1765, 1774 (2018) (“A principal purpose of the

Sentencing Guidelines is to promote uniformity in sentencing imposed by different

federal courts for similar criminal conduct”) (internal quotations omitted), and the

statutory regime governing controlled substance analogues, 21 U.S.C. § 813 (a

“controlled substance analogue shall, to the extent intended for human consumption,

be treated, for the purposes of any Federal law as a controlled substance in schedule

I”).

       AFFIRMED.




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