F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

A N T H O N Y B O Y K I N , Defendant-Appellant

. No. 13-10248

D.C. No. 2:07-cr-00141-W B S-1

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California W illiam B . Shubb, Senior District J udg e, Presiding

Arg ued and Submitted November 17, 2014—San F rancisco, California

F iled May

18, 2015

B efore: Michael Daly

Hawkins and J ohnnie B . Rawlinson, Circuit J udg es, and B arbara M. G. L y n n, District J udg e. *

Opinion by

J udg e L y nn

* T h e Ho n o rab le B arb ara M. G. L y n n , Un ited States District J u d g e f or th e No rth ern District o f

T ex as, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. B O Y K I N 2

SUMMARY * *

Crim inal Law

The panel affirmed a co nviction for one count o f distribution of methamphetamine ( Count 6) and the sentence imposed for f

ive counts of distribution of methamphetamine,

one count of distribution of c ocaine, a n d o n e count o f conspiracy

to distribute.

The panel held that there was sufficient evid e nce to support t h e c o n v i ction on Count 6, as to which the jury was instructed on an aiding and abetting theory of liabil i t y

. The panel ex plained that a rational jury could have found that the defendant and his brother collaborated on the drug transaction
at issue, considering all of the evidenc e , i n c luding the conspiracy and the f

act that the d efendant and his brother collaborated on multiple drug transactions in per s o n and b y phone.

The panel found de e p l y troubling the conduct of the involved law enforcement ag encies, but held that the improprieties do not warra n t reversal of the district court’s denial o f a downward departure for sentencing manipulation. The panel held that it w as r easonable f or law enforcement to

ex tend the investig ation t o b u i l d a strong er case with more controlled purchases by a more credible confidential source, and that the ex istence of an ambig uous F B I m e m o d i d not require the d istrict c ourt to conclude that t h e i n vestig ators

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. B O Y K I N 3

ex tended the investig ation solely to enhance the defendant’s
sentence.

The panel found it was not an abuse of discretion for the district court to find the def e n d a n t’s criminal history to be accurately stated, and held that the district court did not err in apply ing an enhancement for firearm possession. The panel rejected the defendant’s arg ument that the drug quantity attributed to him was unforeseeable.

B e cause the defendant may move the d i s trict court for relief under Sentencing G uidelines Amendment 7 82, the panel declined to remand the case on those g rounds.

COUNSEL

J oseph J

. W iseman (arg ued), W iseman L aw Group, P.C., Davis, California, for Defendant-Appellant.

B enjamin B

. W ag ner, U nited States Attorn ey , Camil A

. S k ipper, Appellate Chief, Heiko P. Coppola (arg ued)
, Assistant United States Attorney
, Sacramento, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. B O Y K I N 4

OP INION

L YNN, District J udg e:

This appeal arises f

rom a series of controlle d d rug p u r c h ases conducted over a period of nearly seven months during 2006 and 2007.

At trial, the defendant, Anthony B oy kin (“B oy kin”), was convicted on five counts o f distribution of methamphetamine,

one count of distribution of c ocaine, and one c o u n t o f conspiracy to distribute. His appeal c h alleng es the

s u f f i ciency of the evidence on Count Six
, one of the c ounts for distribution of methamphetamine. He also c halleng e s his sentence, arg uing that the district court e r r e d i n (1) not departing downward for sent e n cing manipulation; (2) not finding his criminal history to be overst a ted; and (3) not sustaining objections to certain sentencing enhancements.

T h e C o urt finds the evidence w as sufficient to c onvict B oy kin on Count Six

. W hile the Court finds deeply troubling the conduct of the involved law enforceme n t ag encies, the impropr ieties do not warrant r eversal due to sentencing manipulation. F inally
, the Court finds it was not an abuse o f discretion for the district court to find th e defendant’s criminal history to be accurately stated, nor for it to apply the enhancements chall eng ed. Therefore, we affirm the district court’s ruling s on each of the g r ounds raised on appeal.U N I T E D S T A T E S V

. B O Y K I N 5

F ACTUAL AND P R OCEDURAL BAG KROUND

I. The Controlled P urchases

B o y kin and his brother, Patrick, s o l d methamphetamine

a n d cocaine to three different c onfidential sources f r om Aug ust 2 9, 2006 to March 2 6, 2007. T h e s e controlled purchases usually took place at 251 W ilbur Avenue, o r a t a nearby store, W ilbur Market. 1 The investig ation of the B oy kins was c onducted by a Narcotics E n f o r cement Team, NET-5, which wa s composed of local a nd state law enforcement r epresentatives and supervised by the California Depar tment of J ustice, B ureau of Narcotic Enforcement. NET-5 also worked w ith fe d e ral law enforcement ag encies, including the F B I

.

On Aug ust 29, 2006, the g overnment directe d a confidential source, Rachel Rios, to call B oy kin to purchase
two ounces of methamphetamine. B oy kin instructed Rios to g o to an apartment co m p l ex , where she met with an unidentified female while he watched the transaction from a second-story w indow. The g overnm e n t l a ter deactivated Rios

as a source w hen it d iscovered that she wa s s till selling methamphetamine, and as a result, the g overnment recruited a new confidential source, Cry stal Housley

. 2

1 T h e B o y

k in s an d o th ers in th e n eig h bo rh o o d w o u ld f

req u en tly “ h an g

o u t” an d co n g reg ate at 2 5 1 W ilb u r A v en u e, a res i d en ce o w n ed b y th e B o y k in s’ m o th er.

2 T h e reco rd is in co n sisten t w i th resp ect t o th e sp ellin g o f Ho u sley ’ s

n am e. Becau se th e trial tran s crip t sp ells h er n am e as “ Ho u s ley ,” th e Co u rt

w ill d o th e sam e.U N I T E D S T A T E S V

. B O Y K I N 6

Housley p articipa t e d in two controlled purchases involving B oy

kin, on September 1 3, 2006, and September 28, 2006. I n the first purchase, H ousley c a lled B oy kin and asked
to purchase cocaine. He d ir e ct e d her to meet with Patrick, who completed the transaction. I n the second purchase, Housley called B oy

kin and a sked to buy methamphetamine. B oy kin met her at W ilbur Market a nd completed the transaction.

On or about October 27, 2006, Housley was arrested on federal fraud charg es. However, she was not deactivated a s

a source until December 23, 2006, after she pl e d gu i l ty to fraud. Housley h ad b een handled b y Detective Tho m a s Oakes, a narcotics detective with the Yuba County Sheriff’s Department and a member of NET-5, with whom she had a close r e lationship. At B oy k i n ’ s trial, Detective Oakes testified that upon learning of Hous l e y ’ s pending federal fraud charg e s, he immediately delivered her to federal ag e nts, deactivated her as an informant, and paid n o further monies
to h er after she was arrested. This testimony was inaccurate, and ultimately led to a stipulation t h at , in fact, Housley continued to work as an informant for almost two months after her arrest, and she was paid during that time period.

Detective O akes’ brother, J onathan “ J ohnny ” O akes, was

a friend or associate of the B oy k i n s. J ohnny was known to “hang out a

nd be in contact” with them, a nd Detective Oakes testified that J ohnny and B oy kin play ed pool to g e t h e r. 3

3 T h e details o f th e relatio n s h ip b etw een J o h n n y Oak es an d th e B oy k in s is n o t en tirely clear f

ro m th e reco rd
, b u t th e testim o n y o f Detectiv e Oak es p ro m p t ed J u d g e Sh

u b b to rem ark
, “ I th o u g h t o n ly in th e m o v ies d i d p olice

o f f icers in v estig ate cases w

h ere th eir b ro th ers w ere p erso n al f rien d s o f th e p erso n th ey w ere in v estig atin g .” J u d g e Sh ub b fo u n d th e relatio n sh ip soU N I T E D S T A T E S V

. B O Y K I N 7

Despite the conflict arising from the r elationship of J ohnny to the B oy kins, Detective Oakes continued to participate in the investig ation, althoug h the ex t e n t of his participation was disputed. 4

After Housley was d eactivated, the g overnment recruited

a third confidential source, Robert W alton, who conducted controlled purchases from the B oy kins on F ebruary

3, 2007, F ebruary 9, 2007, March 16, 2007, and March 26, 2007. B oy kin often facilitated the transaction over the phone, or he directl y passed the drug s to Patrick, who delivered them to W a lton.

On appeal
, B o y

kin challeng es the sufficiency o f the evidence only for the drug transaction of F ebruary 9, 2 0 0 7. Patrick a rrang ed for that transaction to t a k e place at 251 W ilbur Avenue. B o th brothers w ere outside the residence when W a lton arrived. W alton left with Patric k to p ick up a

s cale and met a

n unidentified Hispanic male at Wilbur Market to obtain the drug s, a fter which th ey returned to 251 W ilbur Avenue. W a lton remained in Patrick’s t r u c k while Patrick went in the house. B oy ki n h a d also left 251 Wilbur

“ rem ark ab le” th at h e th o u g h t it w o u ld b e w ro n g to n o t let th e j u ry h ear ab o u t J o h n n y

Oak es’ relatio n sh ip w ith th e B oy k in s.

4 Detectiv e Oak es testif

ied th at h is b ro th er’ s relatio n s h i p w i th th e B o y k i n s p ro m

p t ed h is su

p erv iso rs to lim it h is in v o lv em en t in t h e in v estig atio n b y assig n in g h im to m an ag e in f orm an t Ho u sley . Detectiv e Oak es ack

n o w led g ed th at h e w as p resen t f o r t h e tw o d r u g tran sactio n s

w ith Ho u sley

. He co u ld n o t recall w h eth er h e w as p resen t o r p art o f th e

su rv eillan ce team f

o r tran sactio n s in v olv in g W alto n

. Detectiv e Oak es d escrib ed h is ro le in th e case as “ v ery l im ited ,” w h ich th e Co u rt co n stru es to m ean th at h is ro le w as m o re lim ited th an at least so m e o th er m em b ers

o f NET

- 5 w ork in g o n

th e B o y k in case.U N I T E D S T A T E S V

. B O Y K I N 8

Avenue, but h e retur n e d after Patrick and W alton did. An unidentified w hite male also entered the res i d e n ce while W a lton sat in Patri c k ’s truck. Officers conducting surveillance testified that Patrick m ade several trips in a nd
out of 2 51 W ilbur Avenue before completing the transaction with W alton. T he g o v ernment a lso introduced evidence that several phone calls were made between Patrick and B oy kin during the r elevant time period. The evidence sho w e d that Patrick beg a

n arrang ing for the drug transaction at 11:58 a.m., and it took place at 2:11 p.m. Meanwhile, B oy kin called Patrick at 1 2:35 p .m., and Patrick c alled B oy kin at 1:51 p.m. and 3:04 p.m.

On March 2 9
, 2007, law enforcement officials ex ecuted search warrants at 251 W ilbur Avenue, Patri c k ’s residence, and B oy kin’s residence. A t B oy

kin’s r esidence, ag ents seiz ed $27,000 in cash, scales with dru g residue, and cellular telephones used during the controlle d p u r c hases. At 251 W i l b u r Avenue, a g ents found a small amount o f methamphetamine w ith packag ing material, t w o s cales, a nd several g uns, including a sawed-off shot gu n with B oy kin’s fing erprints.

II. P roceedings in the District Court

B o y kin and Patrick were charg ed by indictment with o ne count o f conspiracy to distribute and possess with intent to distribute methamphetamine and c ocaine, in violation o f 21 U.S.C. §§ 846 and 841(a)(1); six counts of distribution o f methamphetamine, in violation of 21 U.S.C. § 841(a)(1); a nd

one count of distribution of cocaine, in violation of 21 U .S.C. § 841(a)(1). Patrick pled g uilty to the conspiracy count, but B oy kin proceeded to a jury trial. On March 4, 2011, the jury returned i t s verdict, finding B oy kin g u ilty of the conspiracyU N I T E D S T A T E S V

. B O Y K I N 9

count and six counts o f distribution, an d acquitting him o f one count of distribution of methamphetamine.

The Present en c e Report (PSR) recommended a base offense level o f 34, plus a two-level increase under United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1) for possession of a firearm, r e sulting in an Adjusted Offense L evel of 36. The PSR recommended 262 months o f incarceration, which was at the low e nd o f the a d v i s o r y g uideline rang e, after taking in t o account B oy kin’s criminal history level of I V.

The d istrict court g a v e B oy kin a two-level r eduction for acceptance of res p o nsibility
, which placed the Adjusted Offense L evel at 34. F inding that B oy kin’s criminal history

was accurately stated in the PSR, the court concluded that the
g uideline rang e was 210 to 262 months, an d sentenced B oy kin to 2 10 months to avoid any sentencing disparity with Patrick, who also received a sentence of 210 months.

B o y kin f iled a timely notice of appeal, challeng ing the sufficiency of the evidence on Count Six and arg uing that the district court e rred by not g ranting a downward departure for

s e n t encing manipulation, and b y not finding h is crimin al history to be overstated. After initial briefing w as complete, B oy kin filed a pro se supplemental brief, arg uing the district
court committed plain err o r b y a pply ing a two-level enhancement for possession of a firearm, and by failing to conduct an individualiz ed analy sis of his participation in the conspiracy

. On September 24, 2014, B oy kin’s coun s el sent

a letter to the Court, requesting reman d in lig ht o f Amendment 782 to the U.S. Sentencing Guidelines.U N I T E D S T A T E S V

. B O Y K I N 10

ANALYSIS

I. Suf f iciency of

the Evidence

The court reviews d e novo a challeng e to the sufficiency of the evidence. United S tates v. A ntonakeas
, 255 F .3d 714, 723 (9th Cir. 2001). “Viewing the evidence in the lig ht most favorable to the g overnment, [ the Court] m u s t determine whether any rational jury could have found [ the d efendant]
g uilty of e ach element of the crime bey ond a reasonable doubt.” U

nited States v. Esqu i v e l-Ortega
, 484 F .3d 1221, 1224 (9th Cir. 2007) (citation omitted). The trier of fact has the responsibility “ to resolve conf l i c t s in the testimony
, to weig h the evidence, and to draw reasonable inferences from basic facts to ultimate f

acts.” Jack

s o n v. Virginia
, 443 U.S. 307, 319 (1979).

A c onviction for possession with intent to distribute may be based on o ne o f three leg a l theories: (1) co-conspirator liability ; (2) aiding a

n d abetting ; and (3) ex ercising dominion and control over the contraband. Un i t e d States v. SanchezMata
, 9 25 F

. 2d 1166, 1168 (9th Cir. 1991) (c i tations omitted).

B o y kin arg ues the g overnment failed to establish that he actually or construct i v ely possessed the methamphetamine on F ebruary 9, 2007. H owever, because the jury was instructed

on an aiding and abetting theory of liability
, i t was not necessary for the g overnment to show actual or constructive possession, or t h a t B o y

kin actually sold the drug s. See United States v. Gillock
, 886 F .2d 220, 222 (9t h C ir. 1989). R a ther, it was enoug h to show that B oy kin associate d w i t h the criminal venture, participated in it, and soug ht, by his actions, to make it a success. See id. Circumstantial evidenceU N I T E D S T A T E S V

. B O Y K I N 11

may support a convic t i o n for aiding and abetting

. United States v. Co r o n a-Verbera
, 5 09 F .3d 1105, 1119 (9th Cir. 2007).

Here, there was sufficient evidence for a rational ju r y to find that B oy

kin aided and abetted Patrick’s distrib u tion o f methamphetamine o n F ebruary 9, 2007. Patrick arrang ed the transaction and told W a lton to come to 251 W ilbur Avenue. B oth Patrick a

nd B oy kin were there w hen W alton ar ri v ed. After leaving briefly
, Patric k a n d W alton returned to 251 W ilbur Avenue. B oy

kin, who had also left, returned to 251 W ilbur Avenue as P a t r ick was making trips back a nd forth between the r esidence and Patrick’s truck, where Walton remained and wher e t he drug transaction ultimately took place. The g overnment’s evidence also showed three phone calls between B oy

kin and Patrick on F ebruary 9
, 2007, two of which were close in time to the transaction. 5 F inally
, law enforcement found drug paraphernalia, g uns, and money when they ex ecuted search warrants at B oy kin’s residence and 251 W ilbur Avenue. S e e G illock
, 886 F .2d at 222 (holding an intent to d istribute could be inferred from the g un found in the defendant’s c loset and the larg e quantities of lab

5 B o y k i n co rrectly n o tes th at th e f irst call w as fro m B o y

k in to Patrick

. Ho w ev er, t

h e seco n d call w as f

ro m P atrick to B o y

k in

. T h e Co u rt is b o u n d
to resp ect th at th e j u ry h as “ ex clu siv e p ro v in ce

. . . to

. . . reso lv e

ev id en tiary co n f

licts, an d d raw reaso n ab l e in f eren ces f ro m p ro v en f

acts.” S ee Gillo ck
, 8 8 6 F.2 d at 2 2 2

. T h is ru l e ap p l ies to th ese c a l l s , an d also
ap p lies to Bo y

k in ’ s arg u m en t t

h at eith er th e u n id en tif

ied w h ite m ale w

h o

en tered th e r e s i d e n ce aro u n d th e s am e tim e h e d id
, o r th e u n id en tif ied H isp an ic m ale w ith w

h o m P atrick an d W alto n m et at Wilb u r Mar k e t , co u ld h av e su

p p lied th e m eth am

p h etam in e. T h o se f

acts w ere f

o r th e j u ry to d ecid e, an d ev e n if co n stru ed as th e d ef en d an t co n ten d s, th ey d o n o t

n ecessarily

m ean B o y

k in d id n o t aid an d ab et th e tran sactio n

.U N I T E D S T A T E S V

. B O Y K I N 12

equipment and methamphetamine found in the residences o f the defendant’s associates).

Considering a ll of the e vidence, including the conspiracy and the fact that B oy

kin and Patrick collaborated on multiple drug transactions, in person a nd by p hone, a rationa l j ury could have f

ound that B oy

k in and Patrick collaborated on the drug transaction o f F ebruary 9, 2007. See U nited States v

. Smith
, 832 F

. 2 d 1 1 6 7
, 1172 (9th Cir. 1987) (“Hence, this is
not a case involving nothing m o re than a simple, isolated purchas e

. ” )

. F or the aforementioned r easons, we affirm the jury ’s conviction o n the F ebruary 9
, 2 007 c ount for distribution of methamphetamine.

II. Sentencing

A. Sentencing Manipulation

The Ninth Circuit has not alway s b een careful in
recog niz ing the distinction between “ sentencing entrapment” and “sentencing manipulation.” See, e.g. , United States v. Si
, 343 F

. 3d 1116, 1128 ( 9th Cir. 2003) ( “the result of sentencing factor manipulation, also known as sentencing entrapment”); United S tates v. Riewe
, 165 F .3d 7 27, 729 (9th Cir. 1 999); United States v. Staufer , 38 F .3d 1103, 1106 (9th Cir. 1 994) (describing “sentencin g e ntrapment” as “sentence factor manipulation”). W hen a defendant can show he was predispose d to c ommit a minor or lesser offense, but was entrapped to c ommit a g reater offense, subject t o gr e ater punishment, he may b e elig ible for a downward d eparture o r variance for “sentencing e ntrapment.” United States v. Mejia
, 559 F .3d 1 113, 1118 ( 9th Cir. 2009). I n c ontrast, “sentencing manipulat i o n” occurs when the g overnment increases a defendant’s g u ideline sentence by conducting a l eng thyU N I T E D S T A T E S V

. B O Y K I N 13

investig ation which increases the number of drug transactions and quantities for which the defendant is responsible. United States v

. Torres
, 563 F

. 3d 731, 734 (8th Cir. 2009). I n other words, what sets “ sentencing ent r a p m ent” apart from “sentencing manipulation” is that, in t h e latter, “the judicial
g az e should, in the usual case, focus primarily —thou gh n ot necessarily ex c lusively

—on the g overn m ent’s conduct a nd motives.” United States v. Fontes
, 415 F .3d 174, 181–82 (1st Cir. 2005).

To p r o v e s e n t e n c i n g manipulation, a d efendant must show “that the officers eng ag ed in the later drug transactions solely to enhance his potential sentence.” Torres
, 563 F .3d at 734. Cases from o t h e r circuits h ave g ranted r elief f or sentencing manipulation in “only t h e e x treme and unusual case” involving “outrag e o us g o vernmental c o n duct.” See Fontes
, 415 F .3d at 180; United S tates v. Beltran
, 571 F .3d 1013, 1018–19 (10th Cir. 2009) (ex plaining that, based on d ue process principles, sentencing manipulation “allow[ s] a court to modify a sentence if considering the totalit y of the circumstances, ‘the g overnment’s conduct is s o s h ocking
, outrag eous and intolerable that it offends ‘the universal sense of justice’’”). I f a court finds sentencing manipulation, a downward departure should b e applied to the g uidelines
rang e , “since such manipulation artificially inflates the offense level by increasing the quantity of drug s included in the relevant conduct.” Torres , 563 F .3d at 734–35.

Althoug h B oy

kin arg ued below that his s entence should be reduced due to sentencing entrapment, the substance of his
arg ument and the district c o urt’s a naly sis indicate that B oy

kin mislabeled t h e arg ument. I n fact, B oy k in’s challeng e addressed the conduct of l a w enforcement rather than his predisposition. Given the thrust of B oy kin’s arg ument a

ndU N I T E D S T A T E S V

. B O Y K I N 14

the lack of precision with which we have previously used the
t e r m s “ s e n t e n c i n g e n t r a p m e n t ” a n d “ s e n t e n c i n g manipulation,” we r eview the district court’s factual finding s in the sente n c i n g phase for c lear error. See United States v

. Castaneda
, 94 F .3d 592, 594 (9th Cir. 1996). “ I n ord e r t o

reverse a d istrict court’s factual finding s as clearly erroneous,

we must determine that the district court’s f ac tual finding s

were illog ical, implausible, or w ithout support in the record.” United States v. Spangle , 626 F

. 3d 488, 497 (9th Cir. 2010).

To s u p p o r t h i s s e n tencing manipulation a rg ument, B oy

kin points to three facts that alleg edly motivated law enforcement
to induce further con t r o l led p urchases from the B oy k ins: (1) the F B I memo reviewing the prog ress of the investig ation
ag ainst Patrick, B oy

kin, an d o thers, and ex plaining that additional drug buy s would be necessary to reach the

s entencing g oals set by the U.S. Attorney ’s Offi c e; (2) Detective Oakes’ close r elationship with confidential

source H ousley ; and (3) the close relation s hip of Detective O a k e s’ brother, J ohnny
, to B oy kin a n d Patrick. B oy

kin
arg ues that Detective Oakes’ participation in the investig ation constitutes outrag e o us g overnment conduct, which supports

a finding of sentencing manipulatio n u n d er a test employ ed by the Tenth Circuit. See Beltran
, 5 71 F .3d at 1017–18. I n t h e alternative, B oy

kin arg u es that he was entitled to a downward de p a r ture because law enforcement eng ag ed in additional transactions solely to increase his sentence, urg ing

us to follow precedent from the Eig hth Circuit. S e e Torres
, 563 F .3d at 734.

Reg ardless of the test employ ed, B oy kin fails to dem o n strate that the d istrict court’s finding s were clearly

erroneous. W ith reg ard to the test i n Be ltran
, althoug h the Court is deeply troubled b y the participation of DetectiveU N I T E D S T A T E S V

. B O Y K I N 15

Oakes, the investig ation fell just shy of constituting outrag eous g overnment conduct. A s a result of his unusually close relationship with informa n t H ousley and his brother’s friendship w ith the B o y kins, Oakes clearly had multiple i n c entives to prolong the investig ation. 6 F urthering t h i s perception, Oakes g ave erroneous testimony at trial reg arding his response to learning of Housley ’s arrest on fraud charg es, requiring a stipulation at trial between the parties that Oakes in fact continued working with, and pay ing
, Housley after the
arrest. However, despite Oakes’ conflict of interest, because his r ole was limited and he was b eing supervised, rather than directi n g the investig ation, his conduct was “wrong a nd troubling
, ” but not so “ex treme and outrag eous” as to warrant

a downward d e p a rture f or sentencing manipulation. See Fontes , 415 F .3d at 183. 7

W ith respect to the Torres test, B oy k in asks the Court to hold that it is improper for the g overnm e n t to continue an

6 B o y k in also n otes th at Detectiv e O ak es arran g ed f o r NET

- 5 to p ay f

or Ho u sley ’ s ap artm en t an d u tilities. Detectiv e O ak es also g a v e h e r h is h o m e p h o n e n

u m b er, w h ich h e ad m itted w as u

n u su al. Ho w ev er, NET

- 5
ap p aren t ly h ad a m eetin g to ap p ro v e th ese p ay m en ts, an d Detectiv e Oak es testif ied th at ag en ts k ep t a clo se ey e o n Ho u sley b ecau se NET

- 5 paid f or h er ap artm en t.

7 T h e in v estig atio n o f t

h e Bo y k in s w as n o t an o p eratio n “ created an d stag ed ” b y l aw en f

o rcem en t, n o r w as law en f o rcem en t “ tro llin g f

or targ ets” b ased on eco n o m ic an d so cial co n d itio n s in th e co m m u n ity

. S ee Un ited S t ates v. Bla ck
, 73 3 F. 3 d 2 9 4
, 3 0 3 (9 th Cir. 20 1 3 ). Rath er, in in v estig atin g th e B o y

k in s, law en f o rcem en t w as in f

i ltratin g a p reex istin g crim in al o rg an izatio n

. S ee id

. at 3 0 2

. (“ It is n o t o u trag eo u s

. . . to ap p ro ach i n d iv id u als w

h o are alread y in v o l v e d in or co n tem p latin g a crim in al act, o r t o p ro v i d e n ecessary item s to a co n sp i racy .”). T h eref o re, th e d u e p ro cess co n cern s raised an d rej ected i n Bla ck are n o t im p licated in th is case.U N I T E D S T A T E S V

. B O Y K I N 16

investig ation merely to enhance the defendant’s sentence, a nd that mitig ating a defendant’s sentence is a fitting tool to deter such improper investig ations. This Court has previously h eld that a d istrict court may co nsider the f ull amount of drug s involved when law enforcement arrang es multiple controlled drug purchases for leg itimate investig atory reasons. United States v. Baker
, 6 3 F .3d 1478, 1500 (9th Cir. 1 9 95). Thus, the issue here is whether leg itimate reaso n s ex isted f or the investig ation o r whether it w as solely intended to increase B oy kin’s sentence.

I n Baker
, this Court rejected the defendant’s arg ume n t that his conviction should be reversed because t he
g overnment stretched out its investig ation t o i n crease the drug quantity and potential charg e s a gainst the defendant after it had sufficient evidence to indict. Id. T h e Court “decline[ d ] to a dopt a rule that
, i n effect, would find ‘sentencing manipulation’ whenever th e g overnment, even thoug h it has enoug h evidence to indict, opts instead to w ait in favor of continuing its investig atio n ” b ecause “[ s] uch a rule ‘would unnecessarily and unfairly r e strict the discretion and judg ment of investig ators a nd prosecutor s , ’” a

nd “[ p] olice

. . . must be g iven l e e way to probe the depth a nd

ex tent of a criminal enterprise, to determine w h ether coconspirators ex ist, and to trace

. . . deeper into the distribution hierarchy .” Id. (internal quotations and citations omitted). F inally
, the Court em p h a s iz ed that because “the
g overnment b ea r s the burden of proving its case b ey ond a reasonable doubt, it must be p e r m i tted to ex e rcise its o wn judg ment in d etermining at what point in an inves t i ga t i on enoug h evidence has been obtained.” Id.

Here, there was evidence that the g overnment ex tended its investig ation to build a s t r ong er case ag ainst B oy k in. OfU N I T E D S T A T E S V

. B O Y K I N 17

particular c oncern was that t h e g overnment’s f irst two confidential sou rc es—Rios a nd H ousley

— were both convicted of serious o f

f e n ses during the period they were acting as confidential sources ag ainst the B oy kins. Therefore, it was r easonable for law enforcement to ex te n d the investig ation with more controlled p urchases b y a more credible confidential sour c e

. This is precisely what law enforcement did in having W alton make controlled purchases in F ebruary

and March 2007.

F urther, the ex istence of the F B I memo did not r equire the di s t r i c t court to conclude that the investig ators ex tended the investig ation sol ely to enhance B oy k in’s potential sentence. Althoug h the memo specifically r ecommended drug volumes
to establish charg es, its tex t is too ambig u ous to establish that the ag ents’ sole intent was to enhance B oy k in’s sentence, because it discusses several defendants earlier in the tex t a nd the phrase in question does not clearly refer to B oy

k in:

Ad d i t i onal drug buy s from several of the captioned subjects will be necessary to reach the p referred thresholds established by the United States Attorney ’ s Office in the Eastern District of California

. I t is recommended b y their o ffice that 50 gr a ms or more o f methamphetamine or 500 g rams or more of a cocaine powder be purchased from o ne individual to secure a five (5) y ear mandatory minimum sentence. This case continues.

I n fact, on J a n u a r y 3 1, 2007, when the memo was circulated, B oy

kin had already participated in controlled purchases involving over 50 g rams of methamphetamine, which was the amount described in the memo as necessary toU N I T E D S T A T E S V

. B O Y K I N 18

meet the f

ive-y ear statutory mandator y minimum sentence. 8 Thus, the d i strict court did not c learly err by not finding the F B I memo to be a basis for a ch ar ge of sentencing manipulation.

B. Crim inal History

B o y kin also arg ues the dist ri c t c ourt erred by f ailing to look at the underly ing facts of his criminal history when deciding if it was overstated.

The Court r eviews d e novo a district c ourt’s interpretation of sentencing g uidelines, and the application o f t he sentencing g u idelines is reviewed for abuse of discretion. United States v

. Hernandez-Guerrero
, 633 F .3d 933, 935 (9th Cir. 2 011). “A sentencing court is permitted under U.S.S.G. § 4A1.3 to depart from a r ecommended sentence if it believes that a d efendant’s criminal history cate go r y sig nificantly over-represents the seriousness of his criminal record or the likelihood that he will c ommit further crimes.” United States

v. Govan
, 152 F .3d 1088, 1094 (9th Cir. 1998). F urthermore, the district c ourt retains discretion to depart downward from the g uidelines should it f i n d “m itig ating circumstances of a kind, o r to a deg re e , not a d equately taken into consideration by the Sentencing Commission in f ormulating the g uidelines that should result in a sentence different f rom that described.” United S tates v. Brown
, 985 F .2d 478, 481 (9th C i r

. 1 993)

8 On A u g u st 2 9, 2 0 0 6
, B o y k in distrib u ted t w o ou n ces of

m eth am ph etam in e. On Sep t em

b e r 1 3
, 2 0 0 6, B o y

k in d istrib u ted o n eeig h t h o f an o u n ce o f co cain e. On Sep t e m b e r 2 8
, 2 0 0 6
, B o y

k in d istrib u ted eig h t o u n ces o f m eth am p h etam in e. On e o u n ce i s eq u al to ap p ro x im ately 2 8 .3 5 g ram s, w h ich m ean s B o y

k in h ad m et th e 5 0 g ram th resh o ld w ell b ef

o re th e FB I m em o w as circu lated

.U N I T E D S T A T E S V

. B O Y K I N 19

(quoting 18 U.S.C. § 3553(b)) ( a lteration o m itted). The district court may c onsider “wit h o ut limitation, a ny information c oncerning the backg round, character a nd conduct of the defendant, unless otherwise prohibited [ by the
g uidelines or other law] .” Id. ( citing U.S.S.G. § 1B 1.4).

At the sentencing hearing
, B oy kin g ave a detailed

ex p lanation of the facts and circumstances surroun ding his convictions for vandalism and a loud noise disturbance, and
arg ued that the facts underly ing those offenses were not sufficiently eg reg ious to warrant two additional points being

coun t e d toward his criminal history categ ory

. The district
court responded that “y o u g et on a slippery s l o p e when y ou start try ing t o look a t the u nderly ing facts and look bey ond the judg ment in determining the c r iminal history ,” and stated that the “criminal history [ w as] calculated properly ,” and that it did not “believe that the criminal-history categ ory [ overstated] the seriousness of the criminal history

. ” This ruling was n ot an abuse of discretion, and the trial court was not required to g ive a further ex p lanation.

B o y kin further o b

j e c ts to the addition of two criminal his t o ry points for a 2001 misdemeanor conviction for disturbance of the peace, which B oy kin arg u es was part of a plea deal in which the prosecutor f ound that t h e domestic abuse victim’s alleg a tions were n ot credible. He also objects
to the a ddition of one po int for a 2005 misdemeanor

co n v i c t i on for vandalism, in which B oy kin arrived at a burning apartment alleg edly believing h is children were inside, d iscovered his child r e n were f ine, and then became

o b s t r u c t i v e w h e n o f f i c e r s a l l e g e d l y t r e a t e d h i m contemptuously

.U N I T E D S T A T E S V

. B O Y K I N 20

I t was not an abu s e o f d i scretion for the court to determi n e t hese incidents were properly calculated in determining B oy

kin’s criminal history

.

C. Weapon and Coconspirator Enhancem ents

F inally
, B o y

kin arg ues that the distr i c t court erred b y apply i n g a two-level enhancement for firearm possession. This Court reviews for clear error the district court’s f actual determination that the firearm e nhance m ent in U.S.S.G. § 2D1.1(b)(1) applies. United States v. Kelso
, 942 F

. 2d 680, 681 (9th Cir. 1991).

The defendant a

r gu e s the district court never connected him to the h andg un. H owever, B oy kin misinterprets both the enhancement and his burden. The two-level sentencing adjustment is appropriate “ unless it is c learly improbable that the w eapon was connected with the offense.” U

. S

. S

. G

. § 2D1.1 n. 3 (2010). T h e g overnment “must prove possession by a preponderance of the evide n c e b efore the
court c an apply the two-level increase under § 2D1.1(b)(1).” United States v. Cazares
, 121 F .3d 1241, 1244 (9th Cir. 1 997) (quoting United States v. Mergerson
, 4 F .3 d 3 3 7
, 350 (5th Cir. 1993)).

This Court h as defined “possession” b r oadly

. United States v

. P i tts , 6 F .3d 1 366, 1372 (9th Cir. 1993). “To demonstrate constructive possess i o n the g overnment must prove ‘a sufficient connection b etween the defendant and the contraband to su p port the inference that the defendant

ex e r cised dominion and control over the [ contraband] .’” Kelso
, 942 F .2d at 682 ( q uoting United States v. Disla
, 805 F .2d 1 340, 1350 (9th Cir. 1986)). W here a defendant is convict ed of conspiracy
, the firearm enhancement can beU N I T E D S T A T E S V

. B O Y K I N 21

based on all of the offense conduct, not just the crime o f conviction. United States v. W illard
, 919 F .2d 6 0 6, 610 (9th Cir. 1990), cert. denied , 502 U.S. 872 (1991).

Here, ag ents recovered several firearms from the residence at 251 W ilbur A venue, including a sawed-off sho tg u n with B oy

kin’s fing erprints. The evidence showed B oy kin eng ag e d in numerous d r ug transactions at 251 Wilbur Avenue. T hus, the court did not c learly e rr by finding B oy kin possessed a weapon connected w ith the offense. S e e P itts
, 6 F .3d at 1372.

B o y kin a lso arg ues the district court failed to make a p r o per individualiz ed a ssessment of his relevant conduct i n the conspiracy

. He arg ues his tenuous conn e c t ion with the transaction of F ebruary 9
, 2 0 0 7 m ade that drug quantity unforeseeable to him.

F or reasons already discussed, the e vidence was sufficient
to convict B oy

kin of aiding and abetting the transaction o f F ebruary 9, 2007. Therefore, the d rug q u a ntity attributed to him was foreseeable. S

ee W illard , 919 F .2d at 610.

F or the foreg oing reasons, we affirm the sentence imposed by

the district court. 9

AF F IRMED.

9 B ecau se Bo y

k in m ay m o v e t h e d i s trict co u rt f or relief u n der A m en d m en t 7 8 2 t o th e Gu id elin es, th e C o u rt d eclin es to rem an d th e case

o n th o se g ro u n d s. S

ee 1 8 U.S.C. § 3 5 82 (c)(2 ).