                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 06 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10247

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00479-MCE-1

  v.
                                                 MEMORANDUM *
MARK EDWARD PARKER,

              Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Morrison C. England, Chief District Judge, Presiding

                       Argued and Submitted April 18, 2013 *
                            San Francisco, California

Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Defendant-Appellant Mark Parker was convicted of three drug-related

offenses under 21 U.S.C. §§ 841 and 846: (1) conspiracy to distribute at least 50

grams of crack cocaine; (2) distribution of at least 5 grams of crack cocaine; and

(3) possession with intent to distribute at least 50 grams of crack cocaine. Parker



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          -2-

appeals his convictions and sentences. We have jurisdiction under 18 U.S.C. §

3742 and 28 U.S.C. § 1291, and now affirm.

       First, Parker argues that the district court erroneously advised the jury to

disregard Mark Dixon’s incentive to testify against Parker. This misreads the

judge’s instruction. The judge actually instructed the jury not to contemplate the

sentence that Parker might receive when determining his guilt. There was no error

in that instruction.

       Second, Parker argues that the court allowed testimony protected under the

marital communications privilege and allowed impermissible hearsay testimony by

Parker’s ex-wife. Parker is correct that the joint criminal activity exception does

not apply because the prosecution failed to demonstrate the ex-wife’s involvement

in Parker’s criminal activity. However, while the district court erred in allowing

the ex-wife’s testimony, the error was harmless. Parker’s ex-wife still testified to

personal knowledge of Parker’s purchasing and manufacturing of crack cocaine,

and testified that she knew Parker was a drug dealer. Furthermore, Dixon testified

that he had observed Parker manufacturing crack cocaine, purchased crack cocaine

from Parker, and purchased crack cocaine from an intermediary that Parker sent to

deliver the drugs. Additionally, Parker was arrested with 67.5 grams of crack

cocaine divided into small quantities and $1,159 in denominations consistent with
                                          -3-

selling crack cocaine. In light of this independent evidence to convict Parker, the

court’s error was harmless. United States v. Chu Chong Yin, 935 F.2d 990, 994

(9th Cir. 1991) (“A nonconstitutional evidentiary error will be reversed for abuse

of discretion only if the court’s ruling more likely than not affected the verdict.”).

      Third, Parker argues that there was insufficient evidence for the jury to

convict on the conspiracy count. Viewing the evidence in the light most favorable

to the prosecution, especially the quantity and regularity of crack cocaine sales, a

rational jury could have found Parker guilty on the conspiracy count. United

States v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998).

      With regard to sentencing, Parker first argues that the court failed to comply

with Federal Rule of Criminal Procedure 32. Federal Rule of Criminal Procedure

32 requires only that the court “rule on the dispute.” Here, the court ruled on the

dispute by accepting the facts in the PSR. Therefore, the court complied with the

rule. See United States v. Doe, 488 F.3d 1154, 1158 (9th Cir. 2007) (“[T]he rule is

complied with where the district court expressly adopts the position of either party

to the dispute” even if “no specific factual finding [is] made.”).

      Next, Parker argues that the court should have used the Fair Sentencing Act

when calculating his mandatory minimum sentence. Parker is correct. In Dorsey

v. United States, 132 S. Ct. 2321, 2335 (2012), the Supreme Court held that “the
                                         -4-

Fair Sentencing Act’s new, lower mandatory minimums . . . apply to the post-Act

sentencing of pre-Act offenders.” However, the error was harmless. The pre-and

post-Act minimums were below the lowest sentence in the Guidelines range, and

thus the court was obligated to sentence “based on the Guidelines sentencing

range.” United States v. Evans-Martinez, 611 F.3d 635, 637 (9th Cir. 2010). The

court, in fact, based the sentence on the Guidelines range.

      Parker also argues that the court should have used a 1:1 crack-to-powder

cocaine ratio. However, the court did not abuse its discretion when it found no

reason to depart from the 18:1 ratio under the Fair Sentencing Act. See Rita v.

United States, 551 U.S. 338, 356 (2007).

      Parker is correct that the district court miscalculated the amount of crack

cocaine attributable to him. The court included time between 1999 and 2000 when

Parker could not have sold Dixon crack cocaine. The court also did not account for

Dixon’s three crack cocaine suppliers from 1999 to 2000. However, the record

supports the court’s conclusion that Parker distributed more than 2.8 kilograms of

crack cocaine during the relevant time periods. Under a new calculation, Parker’s

base offense level and Guidelines range remain unchanged, thus the errors were

harmless. See United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (holding
                                          -5-

that an error is harmless if there is no evidence that the errors “if changed, would

result in a shorter sentence”).

      Finally, Parker argues that the court improperly added enhancements to his

sentencing level. The enhancement for Parker’s leadership role under U.S.S.G. §

3B1.1(c) is supported by Parker’s role in distributing crack cocaine to Dixon,

having an accomplice deliver crack cocaine, and manufacturing crack cocaine.

While Parker is correct that the court erred in retroactively applying U.S.S.G. §

2D1.1(b)(14)(E), “committ[ing] the offense as part of a pattern of criminal conduct

engaged in as a livelihood,” the two-level increase did not change his Guidelines

range and was again harmless error.

      AFFIRMED.
