                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 14 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-10066

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00832-SI-3

  v.
                                                 MEMORANDUM*
ELLA MAE SIMPSON,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                             Submitted May 12, 2014**
                              San Francisco, California

Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District
Judge.***




        *
             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 Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.
      Ella Simpson appeals from the sentence imposed after her guilty plea to

possession and conspiracy to possess oxycodone with intent to distribute under 21

U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. We review the district court’s imposition

of a sentence for abuse of discretion, Gall v. United States, 552 U.S. 38, 46 (2007),

and we affirm.

      Simpson argues that her sentence is substantively unreasonable because the

Sentencing Guidelines standard establishing the oxycodone sentencing ratio is

unreasonable, and she contends that our decision in United States v. Lee, 725 F.3d

1159 (9th Cir. 2013), requires that we vacate and remand for resentencing. We

reject these arguments.

       While a district court may deviate from the Guidelines based on

disagreements with the provided ratios, Kimbrough v. United States, 552 U.S. 85,

107–09 (2007), it must treat the Guidelines as the “starting point and the initial

benchmark,” Gall, 552 U.S. at 49. Here, the district court adequately took into

account Simpson’s particular crimes, history, and characteristics in deciding upon a

sentence. The district court properly calculated the Guidelines range for a level 32

offense to be 168 to 210 months, and reasonably rejected Simpson’s contention

that the Guidelines range was adopted without justification by the Sentencing

Commission. Even if the oxycodone Guidelines range was excessive, the district


                                          2
court used the range as a starting point from which it then analyzed Simpson’s

particular situation in light of the factors set forth in 18 U.S.C. § 3553(a), as

required by Kimbrough. See United States v. Doe, 705 F.3d 1134, 1153 (9th Cir.

2013). Making this individualized analysis, the district court decided on a sentence

of 120 months—48 months below the Guidelines range—and there is no indication

that the district court abused its discretion in arriving at this result.

       Also, our decision in Lee does not require us to vacate and remand for

resentencing. In Lee both the prosecution and defense agreed that a 96-month

sentence would likely “be the equivalent of a life sentence,” 725 F.3d at 1169,

while here the only indication that Simpson might potentially not survive her

sentence is an unsupported assertion by her counsel. The district court was aware

of Simpson’s health problems, which it gave as the basis for continuing sentencing

and allowing Simpson to self-surrender. See United States v. Carter, 560 F.3d

1107, 1119 (9th Cir. 2009) (concluding that the district court is not required to

address each argument when “it is clear from the context that the defense’s

arguments were heard”). The district court did not abuse its discretion in imposing

a 120-month sentence for Simpson’s drug offenses.

       AFFIRMED.




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