FILED

NOT FOR PUBLICATION

JUL 02 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10459

Plaintiff-Appellee, D.C. No. 1:15-cr-00519-JMS-2 v.

ALLEN D. GORION, MEMORANDUM*

Defendant-Appellant.

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

Submitted June 14, 2018** Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

Allen Gorion appeals his conviction and 216-month sentence for conspiracy

to possess with intent to distribute five hundred grams or more of

methamphetamine and attempt to possess with intent to distribute five hundred

* 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). grams or more of methamphetamine. 21 U.S.C. § 841(a)(1); id. § 841(b)(1)(A); id.

§ 846. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

An appellate court may reverse a jury’s guilty verdict only if “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted). “Circumstantial

evidence and inferences drawn from it may be sufficient to sustain a conviction.”

United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir. 1998) (quoting United

States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994)). A rational trier of fact may

find the defendant guilty by crediting a reasonable, inculpatory explanation for

circumstantial evidence even where the defendant advances a reasonable, innocent

explanation. See, e.g., McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam);

United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (“[T]he

government does not need to rebut all reasonable interpretations of the evidence

that would establish the defendant's innocence, or rule out every hypothesis except

that of guilt beyond a reasonable doubt . . . .”) (citation omitted).

Circumstantial evidence is insufficient to show knowing possession of

contraband “where mere speculation, rather than reasonable inference, supports the

government's case,” or where the government’s evidence establishes only

2 “proximity to contraband, or association with a person having possession of such

contraband,” Nevils, 598 F.3d at 1167. But “[a] jury can infer knowledge when an

individual is the driver and sole occupant of the vehicle.” United States v. Diaz-

Cardenas, 351 F.3d 404, 407 (9th Cir. 2003). Ownership of the vehicle where

drugs are found, evidence that the defendant had access to the drugs, indicia of

distribution, and possession of large quantities of drugs all support an inference

that the defendant knowingly possessed the drugs. United States v. Lopez, 477 F.3d

1110, 1113 (9th Cir. 2007); United States v. Barbosa, 906 F.2d 1366, 1368 (9th

Cir. 1990).

The evidence was sufficient to show that Gorion knowingly possessed more

than 500 grams of methamphetamine. The presence of Sirchie powder on Gorion’s

clothes supports a conclusion that Gorion made contact with the pseudo-

methamphetamine (“pseudo-meth”) or the bag carrying the pseudo-meth. Although

Gorion’s expert proposed an innocent explanation for the presence of the powder

on Gorion’s clothes, the jury was permitted to credit the government’s reasonable,

inculpatory explanation instead. Gorion was the sole occupant, driver, and owner

of the car where the drugs were found. A government witness testified that the

empty plastic bags in Gorion’s car were consistent with distribution. Finally, the

pseudo-meth in Gorion’s car replaced a large quantity of methamphetamine.

3 A rational trier of fact also could find beyond a reasonable doubt the

remaining elements of attempted possession with intent to distribute. United States

v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir. 2003) (elements); United States v.

Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009) (defining attempt). The quantity and

purity of the methamphetamine that Gorion attempted to possess and the presence

of plastic bags in his car is sufficient to show intent to distribute. United States v.

Innie, 7 F.3d 840, 844 (9th Cir. 1993); United States v. Savinovich, 845 F.2d 834,

838 (9th Cir. 1988). Gorion does not dispute that his actions, if knowing,

constituted a substantial step sufficient to support attempt.

A rational trier of fact could find beyond a reasonable doubt the remaining

elements of conspiracy as well. United States v. Moe, 781 F.3d 1120, 1124 (9th

Cir. 2015) (listing elements). “Once a conspiracy exists, evidence establishing

beyond a reasonable doubt defendant's connection with the conspiracy, even

though the connection is slight, is sufficient to convict defendant of knowing

participation in the conspiracy.” United States v. Penagos, 823 F.2d 346, 348 (9th

Cir. 1987). A jury could infer that Leland Akau was engaged in a conspiracy to

distribute methamphetamine based on evidence that someone in California sent a

package filled with methamphetamine to Akau’s residence, that Akau expected the

package, and that he received the package, opened it, and transferred its contents to

4 a black bag. Officers directly observed Gorion transport the pseudo-meth

throughout the day, both alone and with Akau, and found the psuedo-meth in his

car. Because the jury could infer that Gorion had knowledge of the psuedo-meth, it

could also find that these actions established a connection with the conspiracy.

Next, Gorion challenges his 216-month sentence. “On appeal, we first

consider whether the district court committed significant procedural error, then we

consider the substantive reasonableness of the sentence.” United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). It is procedural error for a district

court “to fail to calculate—or to calculate incorrectly—the Guidelines range.” Id. at

993. An appellate court may reverse for substantive unreasonableness if, under all

of the circumstances, it is left with “a definite and firm conviction that the district

court committed a clear error of judgment.” United States v. Ressam, 679 F.3d

1069, 1087 (9th Cir. 2012) (en banc).

A defendant is entitled to a 2- to 4-level reduction if he can show that he

“was ‘substantially less culpable than the average participant’ in the charged

criminal activity.” United States v. Diaz, 884 F.3d 911, 914 (9th Cir. 2018)

(quoting United States v. Rodriguez–Castro, 641 F.3d 1189, 1193 (9th Cir. 2011));

see also U.S.S.G. § 3B1.2. The defendant has the burden of proving that the

reduction is merited. See id. at 916-17. The evidence arguably shows that Gorion is

5 less culpable than Kaahanui. But there was little evidence apart from Gorion’s own

testimony indicating that Akau’s role was greater than Gorion’s. The district court

did not commit a clear error of judgment in finding that Gorion’s testimony was

not credible, given that Gorion admitted to committing perjury at trial and gave

inconsistent and implausible testimony at sentencing. Gorion offered no other

evidence relevant to the factors enumerated in the Guidelines commentary.

U.S.S.G. § 3B1.2, cmt. n.(3)(C). Because Gorion can at most show that he is less

culpable than one of the three co-conspirators, he has not shown that he is less

culpable than the average co-conspirator.

Finally, after reviewing all of the circumstances, we are not left with a

definite and firm conviction that the sentence was in error. Cf. Ressam, 679 F.3d at

1090-91; United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).

AFFIRMED.

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