United States v. Jason Washington

MEMORANDUM *

1. The district court found that Jason Washington did not possess a firearm “in connection with the offense” under 18 U.S.C. § 3553 (f)(2). The court did not clearly err in so finding. See United States v. Ferryman, 444 F.3d 1183, 1185 (9th Cir.2006). The court carefully considered the circumstances surrounding those instances in which Washington possessed a firearm and concluded that Washington had proved by a preponderance of the evidence that he lawfully possessed the firearms for purposes unconnected to the drug offenses at issue. We cannot say that the court’s finding leaves us “with a definite and firm conviction that a mistake has been made.” Id. at 1186 .

2. The district court also found that Washington was not “an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines.” 18 U.S.C. § 3553 (f)(4). The enhancement for role in the offense applies under U.S.S.G. § 3B1.1 when “the defendant exercised some control over others involved in the commission of the offense or was responsible for organizing others for the purpose of carrying out the crime.” United States v. Yi, 704 F.3d 800, 807 (9th Cir.2013)…

concurring:

Whether all components of the safety valve statute remain constitutional after Alleyne v. United States, — U.S. -, 133 S.Ct. 2151 , 186 L.Ed.2d 314 (2013), is an open question. While at least one circuit has concluded posb-Alleyne that the statute doesn’t offend the Sixth Amendment, see United States v. Harakaly, 734 F.3d 88, 97-99 (1st Cir.2013), our circuit has yet to decide the issue. See United States v. Tequidar-Esquer, No. 13-10514 (9th Cir. appeal docketed Oct. 7, 2013). Having prevailed below on the issue of safety valve eligibility, Washington had no occasion to brief the issue in this appeal, and we therefore do not address it.

FILED

NOT FOR PUBLICATION JUN 25 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30143

Plaintiff - Appellant, D.C. No. 9:11-cr-00061-DLC-

v.

MEMORANDUM*

JASON WASHINGTON,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted June 3, 2014 Seattle, Washington

Before: GOODWIN, McKEOWN, and WATFORD, Circuit Judges.

1. The district court found that Jason Washington did not possess a firearm

“in connection with the offense” under 18 U.S.C. § 3553(f)(2). The court did not

clearly err in so finding. See United States v. Ferryman, 444 F.3d 1183, 1185 (9th

Cir. 2006). The court carefully considered the circumstances surrounding those

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Page 2 of 4 instances in which Washington possessed a firearm and concluded that

Washington had proved by a preponderance of the evidence that…