Birky

United States v. Birky

Good Law
101 F. App'x 701
United States Court of Appeals for the Ninth CircuitJune 21, 2004No. 03-30405California464 words

Opinion

Lead Opinion

MEMORANDUM *

Vance A. Birky appeals his sentence, challenging the district court’s drug quantity calculation for his total offense level and the court’s criminal history calculation. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

A. Drug Quantity Calculation

Birky argues that the district court lacked an adequate basis on which to calculate the drug quantity. We disagree. Where, as here, the authorities seize a drug quantity that does not reflect the scale of the offense, the sentencing court may “approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1 cmt. n. 12; see United States v. Bertrand, 926 F.2d 838, 846 (9th Cir.1991).

The sentencing court here did not err in approximating the potential methamphetamine quantity by relying on Commander Michael Meehan’s testimony. See United States v. Basinger, 60 F.3d 1400, 1409 (9th Cir.1995); Bertrand, 926 F.2d at 846-47 . His testimony provided a “reliable evidentiary basis” for the court to reach its drug approximation. United States v. Rosacker, 314 F.3d 422, 426 (9th Cir.2002).

Jeffrey Eickert’s statements in the Presentence Investigative Report provided a further basis for the court to…

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