                           NOT FOR PUBLICATION                           FILED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

UNITED STATES OF AMERICA,                       No.    18-30168

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00167-TOR-2
 v.

JASON JOEL OBERMILLER,                          MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-30170

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cr-00168-TOR-26
 v.

JASON JOEL OBERMILLER,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Thomas O. Rice, District Judge, Presiding

                          Submitted November 8, 2019**
                              Seattle, Washington

      *
             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).
Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,*** District
Judge.

      After pleading guilty to one count of conspiracy to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii) and 846

and one count of distribution of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B)(viii), Jason Obermiller was sentenced to 90 months of

imprisonment. In a companion case, he was sentenced by the same judge to a

consecutive sentence of 36 months of imprisonment for violating the terms of his

supervised release on an earlier conviction.1 He appeals from those sentences, and

he also appeals the district court’s refusal to disqualify one of the prosecutors

assigned to the methamphetamine case. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

      1. Prior to his pleas in the methamphetamine case, Obermiller had been

acquitted of murder in state court. The husband of one of the prosecutors in

Obermiller’s methamphetamine case testified as an expert witness during the state

murder trial. Obermiller sought to have the prosecutor disqualified, but the only

evidence he could point to for doing so was the existence of the marriage. Standing



      ***
            The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
1
  The Sentencing Guidelines ranges for those sentences were 77-96 months and 30-
36 months, respectively.

                                           2                                    18-30168
alone, the fact that a prosecutor is married to an expert witness in an unrelated case

involving the same defendant does not give rise to any sort of conflict that might

warrant disqualification. The district court did not abuse its discretion in denying

the motion to disqualify.

      2. Obermiller also contends that his 126-month combined sentence is

excessive when compared to the sentences given to the other participants in the

conspiracy. 18 U.S.C. § 3553(a)(6). But he ignores the other sentencing factors as

well as significant distinctions between his circumstances and those of the other

defendants. These distinctions include his more extensive criminal history, his

failure to take advantage of a previous “second chance” provided by the same

judge, and his lack of cooperation with the Government. The district court did not

abuse its discretion in imposing a reasonable sentence just below the top of the

Sentencing Guidelines range.

      3. Finally, Obermiller argues that he was the victim of prosecutorial

vindictiveness, but he provided no evidence of it. The district court did not err in

rejecting this argument.

      AFFIRMED.




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