NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. LLOYD GAGE, AKA L l oyd 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 L l oyd 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, CLER K U.S. COURT OF APPEAL S2 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 f

rom 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. T he district court must determine the applicable G uideline s range by “consider[ing] the presentence report as well as any objections the partie s 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 proceede d 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. T he record addi tionally reflects that both parties understood
the Guidelines r ange applicable f o r 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 pro cedure 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 Guideline s 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, wh ile we do not recognize a presumption of reasonableness fo r 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, 99 4 (9th Cir. 2008) ( quoting Rita v. United States , 551 U.S. 338, 35 1 (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 his4 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 viola tion due to the presence of marijuana and, as such, the SRVM reflected an accurate Sentencing Guideline s range. U.S.S.G. § 7B1.1(a)(1)(ii). Gage’s only other objection to the SRVM Guideline s 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 t he items
found in Gage’s backpacks

— marijuana, plastic baggies, a scale, a calculator, and several items identifying Gage

— support s the court’s finding of an intent to sell or
distr ibute marijuana by a preponderance of the evidence. Lastly, in Gage’s sentencing brief, he admitted that the enhancement likely applied.
3. The re 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 co nduct 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 the5 17

- 10453

seriousness of the criminal offense underlying the revocation.” United States v.
Simtob , 485 F.3d 1058, 1062 (9th Cir. 2007)

. Though convolut ed at times, the district court considered Gage’s breach of the court’s trust and perceived inability to confo rm his conduct to his supervised
release conditions

. The court noted that “a specific deterrent” is needed “[i]f a defendant doesn’t get the mess age 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 transgressio ns , 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 marijuan a. 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 court

imposed supervised release conditions and his recidivist conduct to explain its6 17

- 10453

middle of the Guidelines range sentence.
AFFIRMED.