NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10194

Plaintiff-Appellee, D.C. No. 1:18-cr-00131-DKW-1 v.

JEFFERY ROWELL, AKA Jeffrey D. MEMORANDUM* Rowell, AKA Darnell Stinnette, AKA Jeffery D. Stinnette,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Submitted July 10, 2020** Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

Jeffery Rowell appeals from the sentence imposed by the district court

following his jury conviction for distributing cocaine within 1,000 feet of a

playground, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 860. As the parties

* 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). are familiar with the facts, we do not recount them here. We affirm.

1. At sentencing, the district court found by clear and convincing evidence

that Rowell possessed a wristlet bag containing methamphetamine at the time of

his arrest, and the court used it as relevant conduct which significantly increased

Rowell’s base offense level for calculating his Sentencing Guidelines range. We

review for clear error a district court’s factual findings about relevant conduct.

United States v. Daychild, 357 F.3d 1082, 1103 (9th Cir. 2004).

The district court’s finding that there was clear and convincing evidence that

Rowell possessed the wristlet bag containing methamphetamine at the time of his

arrest is not “illogical, implausible, or without support in the record.” United

States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (citation omitted) (setting forth

clear error standard of review). The record indicates that the task force officer who

processed Rowell after his arrest remembered that Rowell’s property included the

wristlet bag, and that Rowell declined consenting for the officer to search the

wristlet bag.

2. Rowell argues for the first time on appeal that, even if he possessed the

wristlet bag containing methamphetamine, the district court should not have

considered it relevant conduct under United States Sentencing Guidelines Manual

(“U.S.S.G.”) § 1B1.3. Because Rowell did not raise this issue in the district court,

2 we review for plain error. See United States v. Liew, 856 F.3d 585, 596 (9th Cir.

2017).

For the instant case, section 1B1.3(a)(2) provides that the base offense level

is determined by “relevant conduct” which includes all acts and omissions

committed by the defendant “that were part of the same course of conduct or

common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see

also id. cmt. n.5(B)(i)-(ii) (discussing “common scheme or plan” and “same course

of conduct”).

Rowell failed to show that the district court committed a “clear or obvious”

error by considering his possession of methamphetamine as relevant conduct under

section 1B1.3(a)(2). Liew, 856 F.3d at 596 (setting forth plain error standard of

review). Rowell’s possession of methamphetamine had a similar modus operandi

as his underlying cocaine offense because both drugs were packaged in Ziploc

bags, and the packaging indicated Rowell’s intent to distribute the

methamphetamine. See U.S.S.G. § 1B1.3 cmt. n.5(B)(i)-(ii). In addition, Rowell

possessed the methamphetamine only a few months after his underlying offense

involving distributing cocaine. See id. § 1B1.3 cmt. n.5(B)(ii).

3. Finally, Rowell argues that the district court erred by denying him a

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The parties

agree that we review for clear error. See Daychild, 357 F.3d at 1100 n.27.

3 Section 3E1.1 allows for a two-level downward adjustment to a defendant’s

base offense level “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense.” U.S.S.G. § 3E1.1(a). This adjustment is generally

“not intended to apply to a defendant who puts the government to its burden of

proof at trial by denying the essential factual elements of guilt, is convicted, and

only then admits guilt and expresses remorse.” Id. § 3E1.1 cmt. n.2. However,

“[c]onviction by trial . . . does not automatically preclude a defendant from

consideration for such a reduction” and “[i]n rare situations a defendant may

clearly demonstrate an acceptance of responsibility for his criminal conduct even

though he exercises his constitutional right to a trial.” Id.

Here, the district court denied Rowell a downward adjustment for

acceptance of responsibility because Rowell went to trial where defense counsel

argued that Rowell was not the person who sold cocaine to an undercover officer,

and Rowell did not accept responsibility until after his conviction in a presentence

interview. This decision was not clear error. See id. § 3E1.1 cmt. n.5 (“The

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility. For this reason, the determination of the sentencing judge is entitled

to great deference on review.”).

AFFIRMED.

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