                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 4 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10453

                Plaintiff-Appellee,             D.C. No.
                                                3:12-cr-00276-CRB-1
 v.

LLOYD GAGE, AKA Lloyd Gage, AKA                 MEMORANDUM*
Lloyd L Gage, AKA Lloyd Vonta Gage,
AKA Raymond Twine,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    17-10454

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-00264-CRB-1
 v.

LLOYD GAGE, AKA Lloyd Gage, AKA
Lloyd L Gage, AKA Lloyd Vonta Gage,
AKA Raymond Twine,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                    Argued and Submitted December 17, 2018

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                             San Francisco, California

Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.

      Defendant Lloyd Gage appeals his sentence following his conviction for

being a felon in possession of a firearm and his violation of supervised release

conditions from a previous conviction. Gage alleges that the district court

committed several procedural errors during sentencing. We disagree and affirm

the sentence.

1.    The district court did not commit plain error by failing to affirmatively state

on the record the Sentencing Guidelines range for both Gage’s substantive

conviction and supervised release conditions violation. The district court must

determine the applicable Guidelines range by “consider[ing] the presentence report

as well as any objections the parties might have. The court then entertains the

parties’ arguments regarding an appropriate sentence, including whether the

sentence should be within the Guidelines range or not.” Molina-Martinez v.

United States, 136 S. Ct. 1338, 1342 (2016).

      The district court did precisely what the Supreme Court requires it to do.

The sentencing hearing began with a confirmation from defense counsel that she

had discussed the Presentence Investigation Report (PSR) with Gage. The district



      **
             The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.

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court then proceeded to discuss Gage’s objections to the PSR. After addressing

these objections and ultimately finding a four level enhancement appropriate for

Gage’s substantive offense, the district court heard arguments regarding an

appropriate sentence. The record additionally reflects that both parties understood

the Guidelines range applicable for a 18 U.S.C. § 922(g) conviction and the

implication of a four level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B).

      While the district court did not follow the same procedure for Gage’s

supervised release conditions violation, it is clear that the court considered the

parties’ arguments and the Supervised Release Violation Memorandum’s (SRVM)

suggested Guidelines range. The government clarified that Gage’s sentence for

violating his supervised release conditions is limited to 22 months under 18 U.S.C.

§ 3583(e)(3)—a sentence falling in the middle of the Guidelines range. Gage

failed to object to the government’s representations of the Guidelines range.

Additionally, while we do not recognize a presumption of reasonableness for a

within-Guidelines sentence, we “abide by the Supreme Court’s admonition that

‘when the judge’s discretionary decision accords with the Commission’s view’ . . .

, it is probable that the sentence is reasonable.” United States v. Carty, 520 F.3d

984, 994 (9th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).

      Since Gage failed to object at the sentencing hearing, he must show that the

district court’s failure to state the Sentencing Guidelines calculation affected his


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substantial rights and constituted plain error. Molina-Martinez, 136 S. Ct. at 1343.

Gage has not done so here. Gage’s conduct constituted a Grade A violation due to

the presence of marijuana and, as such, the SRVM reflected an accurate

Sentencing Guidelines range. U.S.S.G. § 7B1.1(a)(1)(ii). Gage’s only other

objection to the SRVM Guidelines range is a policy argument that does not affect

his substantial rights.

2.    The district court provided little reasoning, but articulated sufficient facts to

establish a basis for the four level enhancement pursuant to U.S.S.G.

§ 2K2.1(b)(6)(B). The court found that Gage “decided with others that they were

going to engage in the business of selling marijuana.” The nature of the items

found in Gage’s backpacks—marijuana, plastic baggies, a scale, a calculator, and

several items identifying Gage—supports the court’s finding of an intent to sell or

distribute marijuana by a preponderance of the evidence. Lastly, in Gage’s

sentencing brief, he admitted that the enhancement likely applied.

3.    There is no indication that the district court improperly considered Gage’s

substantive offense when determining his supervised release conditions violation

sentence. While a district court “may not punish him for the criminal conduct

underlying the revocation,” United States v. Hammons, 558 F.3d 1100, 1104 (9th

Cir. 2009) (quoting United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006)),

there is no “blanket proposition that a court in no circumstances may consider the


                                           4                                     17-10453
seriousness of the criminal offense underlying the revocation.” United States v.

Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007).

      Though convoluted at times, the district court considered Gage’s breach of

the court’s trust and perceived inability to conform his conduct to his supervised

release conditions. The court noted that “a specific deterrent” is needed “[i]f a

defendant doesn’t get the message or just doesn’t follow the message.” To the

extent that the court considered Gage’s substantive offense in calculating his

violation of supervised release conditions sentence, it was appropriate to recognize

that the substantive offense was identical to Gage’s previous conviction

underpinning the supervised release conditions that Gage violated. See id. (“The

history of the violator, when combined with the violator’s most recent criminal

offenses, and particularly when similar to the past transgressions, is indicative of

the violator’s propensity for recidivism and inability to integrate peacefully into a

community.”).

4.    Finally, the district court did not fail to explain a twelve-month upward

variance as there was no variance in Gage’s supervised release violation sentence.

As discussed above, Gage’s offense constituted a Grade A violation due to the

presence of marijuana. U.S.S.G. § 7B1.1(a)(1)(ii). While a more robust discussion

is preferable, the district court adequately pointed to Gage’s failure to follow court-

imposed supervised release conditions and his recidivist conduct to explain its


                                          5                                      17-10453
middle of the Guidelines range sentence.

      AFFIRMED.




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