NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LLOYD GAGE, AKA Lloyd Gage, AKA 

Lloyd L Gage, AKA Lloyd Vonta Gage, 

AKA Raymond Twine, 

Defendant-Appellant.

No. 17-10453 

D.C. No. 

3:12-cr-00276-CRB-1 

MEMORANDUM*

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LLOYD GAGE, AKA Lloyd Gage, AKA 

Lloyd L Gage, AKA Lloyd Vonta Gage, 

AKA Raymond Twine, 

Defendant-Appellant.

No. 17-10454 

D.C. No. 

3:17-cr-00264-CRB-1 

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted December 17, 2018

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JAN 4 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-10453 

San Francisco, California

Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.

Defendant Lloyd Gage appeals his sentence following his conviction for 

being a felon in possession of a firearm and his violation of supervised release 

conditions from a previous conviction. Gage alleges that the district court 

committed several procedural errors during sentencing. We disagree and affirm 

the sentence.

1. The district court did not commit plain error by failing to affirmatively state 

on the record the Sentencing Guidelines range for both Gage’s substantive 

conviction and supervised release conditions violation. The district court must 

determine the applicable Guidelines range by “consider[ing] the presentence report 

as well as any objections the parties might have. The court then entertains the 

parties’ arguments regarding an appropriate sentence, including whether the 

sentence should be within the Guidelines range or not.” Molina-Martinez v. 

United States, 136 S. Ct. 1338, 1342 (2016). 

The district court did precisely what the Supreme Court requires it to do. 

The sentencing hearing began with a confirmation from defense counsel that she 

had discussed the Presentence Investigation Report (PSR) with Gage. The district 

 

** The Honorable Jane A. Restani, Judge for the United States Court of 

International Trade, sitting by designation.
3 17-10453 

court then proceeded to discuss Gage’s objections to the PSR. After addressing 

these objections and ultimately finding a four level enhancement appropriate for 

Gage’s substantive offense, the district court heard arguments regarding an 

appropriate sentence. The record additionally reflects that both parties understood 

the Guidelines range applicable for a 18 U.S.C. § 922(g) conviction and the 

implication of a four level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B). 

While the district court did not follow the same procedure for Gage’s 

supervised release conditions violation, it is clear that the court considered the 

parties’ arguments and the Supervised Release Violation Memorandum’s (SRVM)

suggested Guidelines range. The government clarified that Gage’s sentence for 

violating his supervised release conditions is limited to 22 months under 18 U.S.C. 

§ 3583(e)(3)—a sentence falling in the middle of the Guidelines range. Gage 

failed to object to the government’s representations of the Guidelines range. 

Additionally, while we do not recognize a presumption of reasonableness for a 

within-Guidelines sentence, we “abide by the Supreme Court’s admonition that 

‘when the judge’s discretionary decision accords with the Commission’s view’ . . .

, it is probable that the sentence is reasonable.” United States v. Carty, 520 F.3d 

984, 994 (9th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).

Since Gage failed to object at the sentencing hearing, he must show that the 

district court’s failure to state the Sentencing Guidelines calculation affected his 
4 17-10453 

substantial rights and constituted plain error. Molina-Martinez, 136 S. Ct. at 1343. 

Gage has not done so here. Gage’s conduct constituted a Grade A violation due to 

the presence of marijuana and, as such, the SRVM reflected an accurate

Sentencing Guidelines range. U.S.S.G. § 7B1.1(a)(1)(ii). Gage’s only other 

objection to the SRVM Guidelines range is a policy argument that does not affect

his substantial rights. 

2. The district court provided little reasoning, but articulated sufficient facts to 

establish a basis for the four level enhancement pursuant to U.S.S.G. 

§ 2K2.1(b)(6)(B). The court found that Gage “decided with others that they were 

going to engage in the business of selling marijuana.” The nature of the items 

found in Gage’s backpacks—marijuana, plastic baggies, a scale, a calculator, and 

several items identifying Gage—supports the court’s finding of an intent to sell or 

distribute marijuana by a preponderance of the evidence. Lastly, in Gage’s 

sentencing brief, he admitted that the enhancement likely applied. 

3. There is no indication that the district court improperly considered Gage’s 

substantive offense when determining his supervised release conditions violation 

sentence. While a district court “may not punish him for the criminal conduct 

underlying the revocation,” United States v. Hammons, 558 F.3d 1100, 1104 (9th 

Cir. 2009) (quoting United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006)), 

there is no “blanket proposition that a court in no circumstances may consider the 
5 17-10453 

seriousness of the criminal offense underlying the revocation.” United States v. 

Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007). 

Though convoluted at times, the district court considered Gage’s breach of 

the court’s trust and perceived inability to conform his conduct to his supervised 

release conditions. The court noted that “a specific deterrent” is needed “[i]f a 

defendant doesn’t get the message or just doesn’t follow the message.” To the 

extent that the court considered Gage’s substantive offense in calculating his

violation of supervised release conditions sentence, it was appropriate to recognize 

that the substantive offense was identical to Gage’s previous conviction

underpinning the supervised release conditions that Gage violated. See id. (“The 

history of the violator, when combined with the violator’s most recent criminal 

offenses, and particularly when similar to the past transgressions, is indicative of 

the violator’s propensity for recidivism and inability to integrate peacefully into a 

community.”). 

4. Finally, the district court did not fail to explain a twelve-month upward 

variance as there was no variance in Gage’s supervised release violation sentence. 

As discussed above, Gage’s offense constituted a Grade A violation due to the 

presence of marijuana. U.S.S.G. § 7B1.1(a)(1)(ii). While a more robust discussion 

is preferable, the district court adequately pointed to Gage’s failure to follow courtimposed supervised release conditions and his recidivist conduct to explain its 
6 17-10453 

middle of the Guidelines range sentence.

AFFIRMED.