NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 05 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 17-30139

Plaintiff-Appellee, D.C. No. 1:15-cr-00147-SPW-3 v.

DUSTY WHITEHOUSE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted August 31, 2018** Seattle, Washington

Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.

Appellant Dusty Whitehouse (“Whitehouse”) appeals her sentence for

conspiracy to possess with intent to distribute methamphetamine, possession with

* 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). intent to distribute methamphetamine, and distribution of methamphetamine. We

affirm.

The district court did not violate Apprendi 1 or contradict the jury’s findings by

using the guideline sentencing range for pure methamphetamine. The jury was

properly asked to determine the quantity of drugs involved, as this affects the statutory

penalty imposed; here, the jury concluded Whitehouse was responsible for “at least

50 grams” or more of a “substance containing a detectible amount of

methamphetamine.” The only drugs seized in this case tested 98.2% pure, and there

was no contrary evidence submitted that other deliveries involved less pure

substances; it was not clear error for the court to extrapolate that purity to the quantity

found by the jury. United States v. Lopes-Montes, 165 F.3d 730, 732 (9th Cir. 1999)

(“[U]sing the purity of drugs actually seized to estimate the purity of the total quantity

of drugs the defendant agreed to deliver is an appropriate method of establishing the

base [guideline] offense level.”). The district court did not abuse its discretion by

denying Whitehouse’s request for an acceptance of responsibility adjustment.

U.S.S.G § 3E1.1. Although at trial Whitehouse conceded responsibility for Count 3,

she continued to contest elements of the other two counts. It is an exceptional and rare

case where a defendant who goes to trial should be granted a downward adjustment

1 Apprendi v. New Jersey, 530 U.S. 466 (2000). 2 for acceptance of responsibility, see United States v. Weiland, 420 F.3d 1062, 1080

(9th Cir. 2005), and the court was within its discretion to find such exceptional

circumstances did not apply in this case.

AFFIRMED.

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