                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10406

                Plaintiff-Appellee,             D.C. No.
                                                1:17-cr-00116-LJO-SKO-1
 v.

ROY RODRIGUEZ,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Lawrence J. O'Neill, District Judge, Presiding

                     Argued and Submitted December 3, 2019
                            San Francisco, California

Before: LUCERO,** CALLAHAN, and BADE, Circuit Judges.

      Roy Rodriguez appeals his sentence following his guilty plea to possessing a

firearm as a felon in violation of 18 U.S.C. § 922(g)(1). Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
      Rodriguez argues the district court erred in applying a preponderance of the

evidence standard to determine he qualified for a four-level enhancement for

possessing a firearm in connection with another felony offense. See

U.S.S.G. § 2K2.1(b)(6)(B). We review de novo the question “[w]hether the

district court violated due process by using an improper standard of proof” at

sentencing. United States v. Berger, 587 F.3d 1038, 1042 (9th Cir. 2009).

      “A district court typically uses a preponderance of the evidence standard

when finding facts pertinent to sentencing.” Id. at 1047. However, “there may be

an exception to the general rule that the preponderance standard satisfies due

process when a sentencing factor has an extremely disproportionate effect on the

sentence relative to the offense of conviction.” United States v. Restrepo, 946 F.2d

654, 659 (9th Cir. 1991) (en banc). This court has identified six factors relevant to

determining whether the clear and convincing evidence standard applies to a

particular enhancement. See United States v. Jordan, 256 F.3d 922, 928 (9th Cir.

2001) (listing factors). We look to the totality of the circumstances and do not

consider any one factor as dispositive. Id. Most of the relevant factors weigh

against a heightened standard of review in this case. Considering the totality of the

circumstances, we conclude the preponderance standard was appropriate.1


      1
              Because we conclude the district court did not err, we decline to
consider the government’s arguments regarding preservation and the continued
validity of Jordan.

                                          2                                   18-10406
      Rodriguez also contends the district court violated Rule 32 of the Federal

Rules of Criminal Procedure by failing to decide whether pills found in his

bedroom contained hydrocodone and oxycodone. This issue is subject to de novo

review. United States v. Pineda-Doval, 614 F.3d 1019, 1040 (9th Cir. 2010). We

hold the district court satisfied Rule 32. The court explicitly agreed with defense

counsel that officers’ description of the pills as containing those drugs “turned out

to be a very inaccurate statement.” Although the court later overruled Rodriguez’s

objections to the Presentence Investigation Report (“PSR”), the court construed the

statements in the PSR about the composition of the pills as descriptions of the

officers’ beliefs, not as statements of fact about the pills.

      Finally, Rodriguez argues the evidence was insufficient to support an

enhancement under § 2K2.1(b)(6)(B). “We review a district court’s interpretation

of the Sentencing Guidelines de novo, and review a district court’s factual findings

in the sentencing phase for clear error.” United States v. Johansson, 249 F.3d 848,

858 (9th Cir. 2001). The district court found Rodriguez committed the offenses of

possession of a controlled substance with intent to distribute and attempted

possession of a controlled substance with intent to distribute, both of which are

felonies. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846. We conclude that the

evidence supports the finding that Rodriguez possessed a firearm in connection

with the former offense, and thus do not consider the latter.


                                            3                                  18-10406
      Officers discovered a firearm in Rodriguez’s bedroom in close proximity to

pills containing methamphetamine. See U.S.S.G. § 2K2.1 cmt. 14(B)(ii)

(enhancement warranted “in the case of a drug trafficking offense in which a

firearm is found in close proximity to drugs”). Additional evidence supported the

finding that Rodriguez intended to distribute those pills. Although the pills

contained only a small amount of methamphetamine, the definition of “controlled

substance” includes “any material, compound, mixture, or preparation which

contains any quantity of” methamphetamine. 21 C.F.R. § 1308.12(d); see 21

U.S.C. § 802(6). Any detectable amount is sufficient to satisfy the statutory

definition. United States v. McGeshick, 41 F.3d 419, 421 (9th Cir. 1994). Further,

even if Rodriguez was mistaken about the particular controlled substance

contained in the pills, that mistaken belief would not provide a defense. See

Quintero v. United States, 33 F.3d 1133, 1136 (9th Cir. 1994).

      AFFIRMED.




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