                             NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                        FEB 26 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-10081

             Plaintiff - Appellee,                D.C. No. 1:11-cr-00479-JMS-3

   v.
                                                  MEMORANDUM*
TYRONE FAIR, AKA Tale, AKA Tolley,

             Defendant - Appellant.

                     Appeal from the United States District Court
                              for the District of Hawaii
                    J. Michael Seabright, District Judge, Presiding

                            Submitted February 18, 2015**
                                 Honolulu, Hawaii

Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.

        A jury convicted Tyrone Fair of (1) conspiring to distribute, and to possess

with intent to distribute, 50 grams or more of methamphetamine, and (2) possessing

50 grams or more of methamphetamine with intent to distribute. See 21 U.S.C.



        *
             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).
§§ 841(a)(1), 841(b)(1)(A)(viii), 846. Fair now appeals his convictions and

sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We affirm.

      Sufficient evidence supports Fair’s convictions. See United States v. Nevils,

598 F.3d 1158, 1163-70 (9th Cir. 2010) (en banc). The jury was entitled to credit

Fair’s alleged co-conspirator’s testimony, and we must assume that it did so. See

id. at 1170; see also United States v. Tam, 240 F.3d 797, 806 (9th Cir. 2011)

(holding that uncorroborated accomplice testimony was sufficient to support a

conviction). Viewing the co-conspirator’s testimony in the light most favorable to

the prosecution, we conclude that a rational trier of fact could convict Fair based on

that testimony. See Nevils, 598 F.3d at 1164-65.

      The jury instructions did not constructively amend the indictment against

Fair. Because “the proof offered at trial matched the charges made in the

indictment,” there was no risk that “the jury instructions allowed [Fair] to be

convicted on the basis of different behavior than that alleged in the original

indictment.” United States v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006) (internal

quotation marks omitted).

      The district court did not err at sentencing. Fair’s sentence is not

                                          2
substantively unreasonable. See United States v. Vasquez, 654 F.3d 880, 886 (9th

Cir. 2011); United States v. Burgum, 633 F.3d 810, 813 (9th Cir. 2011). The record

does not support Fair’s arguments that the district court “[gave] no meaningful

explanation” for Fair’s sentence, “disregarded” Fair’s letters of support, or

“penalized [Fair] for exercising his constitutional right to meaningfully appeal his

criminal conviction.”

      Finally, the 18 U.S.C. § 3553(f) safety valve is not unconstitutional under

Alleyne v. United States, 133 S. Ct. 2151 (2013). See United States v.

Lizarraga-Carrizales, 757 F.3d 995, 996-97 (9th Cir. 2014).

      AFFIRMED.




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