Lemay

MEMORANDUM **

Deanne LeMay appeals her conviction and sentence for conspiracy to possess methamphetamine with intent to distribute and for possessing it with intent to distribute. 21 U.S.C. §§ 841 , 846. We affirm.

(1) LeMay first asserts that the district court committed plain error 1 when it failed to grant a mistrial sua sponte after certain evidence (audiotapes) referred to by the prosecution was withdrawn. We disagree.

While we must satisfy ourselves that the district court used sound discretion, 2 we do owe it great deference. 3 In this case, there surely was no manifest necessity for a mistrial, 4 and the district court properly decided that a cautionary instruction would suffice. 5 In short, there was no error, much less plain error. Cf. United States v. Olano, 62 F.3d 1180, 1192 (9th Cir.1995) (no plain error in failure to sua sponte grant a mistrial on issue of jury misconduct).

(2) LeMay also asserts that at sentencing the district court decided questions of fact which should have been submitted to a jury because they increased her guideline sentencing range. See Blakely v. Washington, 542 U.S.-, 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). However, because the Supreme…