FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY BOYKIN,

Defendant-Appellant.

No. 13-10248

D.C. No.

2:07-cr-00141-WBS-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Senior District Judge, Presiding

Argued and Submitted

November 17, 2014—San Francisco, California

Filed May 18, 2015

Before: Michael Daly Hawkins and Johnnie B. Rawlinson,

Circuit Judges, and Barbara M. G. Lynn, District Judge.*

Opinion by Judge Lynn

 

*

 The Honorable Barbara M. G. Lynn, United States District Judge for

the Northern District of Texas, sitting by designation.
2 UNITED STATES V. BOYKIN

SUMMARY**

Criminal Law

The panel affirmed a conviction for one count of

distribution of methamphetamine (Count 6) and the sentence

imposed for five counts of distribution of methamphetamine,

one count of distribution of cocaine, and one count of

conspiracy to distribute. 

The panel held that there was sufficient evidence to

support the conviction on Count 6, as to which the jury was

instructed on an aiding and abetting theory of liability. The

panel explained that a rational jury could have found that the

defendant and his brother collaborated on the drug transaction

at issue, considering all of the evidence, including the

conspiracy and the fact that the defendant and his brother

collaborated on multiple drug transactions in person and by

phone.

The panel found deeply troubling the conduct of the

involved law enforcement agencies, but held that the

improprieties do not warrant reversal of the district court’s

denial of a downward departure for sentencing manipulation. 

The panel held that it was reasonable for law enforcement to

extend the investigation to build a stronger case with more

controlled purchases by a more credible confidential source,

and that the existence of an ambiguous FBI memo did not

require the district court to conclude that the investigators

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. BOYKIN 3

extended the investigation solely to enhance the defendant’s

sentence. 

The panel found it was not an abuse of discretion for the

district court to find the defendant’s criminal history to be

accurately stated, and held that the district court did not err in

applying an enhancement for firearm possession. The panel

rejected the defendant’s argument that the drug quantity

attributed to him was unforeseeable. 

Because the defendant may move the district court for

relief under Sentencing Guidelines Amendment 782, the

panel declined to remand the case on those grounds.

COUNSEL

Joseph J. Wiseman (argued), Wiseman Law Group, P.C.,

Davis, California, for Defendant-Appellant.

Benjamin B. Wagner, United States Attorney, Camil A.

Skipper, Appellate Chief, Heiko P. Coppola (argued),

Assistant United States Attorney, Sacramento, California, for

Plaintiff-Appellee.
4 UNITED STATES V. BOYKIN

OPINION

LYNN, District Judge:

This appeal arises from a series of controlled drug

purchases conducted over a period of nearly seven months

during 2006 and 2007.

At trial, the defendant, Anthony Boykin (“Boykin”), was

convicted on five counts of distribution of methamphetamine,

one count of distribution of cocaine, and one count of

conspiracy to distribute. His appeal challenges the

sufficiency of the evidence on Count Six, one of the counts

for distribution of methamphetamine. He also challenges his

sentence, arguing that the district court erred in (1) not

departing downward for sentencing manipulation; (2) not

finding his criminal history to be overstated; and (3) not

sustaining objections to certain sentencing enhancements.

The Court finds the evidence was sufficient to convict

Boykin on Count Six. While the Court finds deeply troubling

the conduct of the involved law enforcement agencies, the

improprieties do not warrant reversal due to sentencing

manipulation. Finally, the Court finds it was not an abuse of

discretion for the district court to find the defendant’s

criminal history to be accurately stated, nor for it to apply the

enhancements challenged. Therefore, we affirm the district

court’s rulings on each of the grounds raised on appeal.
UNITED STATES V. BOYKIN 5

FACTUAL AND PROCEDURAL BAGKROUND

I. The Controlled Purchases

Boykin and his brother, Patrick, sold methamphetamine

and cocaine to three different confidential sources from

August 29, 2006 to March 26, 2007. These controlled

purchases usually took place at 251 Wilbur Avenue, or at a

nearby store, Wilbur Market.1 The investigation of the

Boykins was conducted by a Narcotics Enforcement Team,

NET-5, which was composed of local and state law

enforcement representatives and supervised by the California

Department of Justice, Bureau of Narcotic Enforcement. 

NET-5 also worked with federal law enforcement agencies,

including the FBI.

On August 29, 2006, the government directed a

confidential source, Rachel Rios, to call Boykin to purchase

two ounces of methamphetamine. Boykin instructed Rios to

go to an apartment complex, where she met with an

unidentified female while he watched the transaction from a

second-storywindow. The government later deactivated Rios

as a source when it discovered that she was still selling

methamphetamine, and as a result, the government recruited

a new confidential source, Crystal Housley.

2

 

1

 The Boykins and others in the neighborhood would frequently “hang

out” and congregate at 251 Wilbur Avenue, a residence owned by the

Boykins’ mother.

2 The record is inconsistent with respect to the spelling of Housley’s

name. Because the trial transcript spells her name as “Housley,” the Court

will do the same.
6 UNITED STATES V. BOYKIN

Housley participated in two controlled purchases

involvingBoykin, on September 13, 2006, and September 28,

2006. In the first purchase, Housley called Boykin and asked

to purchase cocaine. He directed her to meet with Patrick,

who completed the transaction. In the second purchase,

Housley called Boykin and asked to buy methamphetamine. 

Boykin met her at Wilbur Market and completed the

transaction.

On or about October 27, 2006, Housley was arrested on

federal fraud charges. However, she was not deactivated as

a source until December 23, 2006, after she pled guilty to

fraud. Housley had been handled by Detective Thomas

Oakes, a narcotics detective with the Yuba County Sheriff’s

Department and a member of NET-5, with whom she had a

close relationship. At Boykin’s trial, Detective Oakes

testified that upon learning of Housley’s pending federal

fraud charges, he immediately delivered her to federal agents,

deactivated her as an informant, and paid no further monies

to her after she was arrested. This testimony was inaccurate,

and ultimately led to a stipulation that, 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 Oakes’ brother, Jonathan “Johnny” Oakes, was

a friend or associate of the Boykins. Johnny was known to

“hang out and be in contact” with them, and Detective Oakes

testified that Johnny and Boykin played pool together.3

3 The details of the relationship between Johnny Oakes and the Boykins

is not entirely clear from the record, but the testimony of Detective Oakes

prompted Judge Shubb to remark, “I thought only in the movies did police

officers investigate cases where their brothers were personal friends ofthe

person they were investigating.” Judge Shubb found the relationship so
UNITED STATES V. BOYKIN 7

Despite the conflict arising from the relationship of Johnny to

the Boykins, Detective Oakes continued to participate in the

investigation, although the extent of his participation was

disputed.4

After Housley was deactivated, the government recruited

a third confidential source, Robert Walton, who conducted

controlled purchases from the Boykins on February 3, 2007,

February 9, 2007, March 16, 2007, and March 26, 2007. 

Boykin often facilitated the transaction over the phone, or he

directly passed the drugs to Patrick, who delivered them to

Walton.

On appeal, Boykin challenges the sufficiency of the

evidence only for the drug transaction of February 9, 2007. 

Patrick arranged for that transaction to take place at 251

Wilbur Avenue. Both brothers were outside the residence

when Walton arrived. Walton left with Patrick to pick up a

scale and met an unidentified Hispanic male at Wilbur

Market to obtain the drugs, after which they returned to 251

Wilbur Avenue. Walton remained in Patrick’s truck while

Patrick went in the house. Boykin had also left 251 Wilbur

“remarkable” that he thought it would be wrong to not let the jury hear

about Johnny Oakes’ relationship with the Boykins.

4 Detective Oakes testified that his brother’s relationship with the

Boykins prompted his supervisors to limit his involvement in the

investigation by assigning him to manage informant Housley. Detective

Oakes acknowledged that he was present for the two drug transactions

with Housley. He could not recall whether he was present or part of the

surveillance team for transactions involving Walton. Detective Oakes

described his role in the case as “very limited,” which the Court construes

to mean that his role was more limited than at least some other members

of NET-5 working on the Boykin case.
8 UNITED STATES V. BOYKIN

Avenue, but he returned after Patrick and Walton did. An

unidentified white male also entered the residence while

Walton sat in Patrick’s truck. Officers conducting

surveillance testified that Patrick made several trips in and

out of 251 Wilbur Avenue before completing the transaction

with Walton. The government also introduced evidence that

several phone calls were made between Patrick and Boykin

during the relevant time period. The evidence showed that

Patrick began arranging for the drug transaction at 11:58 a.m.,

and it took place at 2:11 p.m. Meanwhile, Boykin called

Patrick at 12:35 p.m., and Patrick called Boykin at 1:51 p.m.

and 3:04 p.m.

On March 29, 2007, law enforcement officials executed

search warrants at 251 Wilbur Avenue, Patrick’s residence,

and Boykin’s residence. At Boykin’s residence, agents seized

$27,000 in cash, scales with drug residue, and cellular

telephones used during the controlled purchases. At 251

Wilbur Avenue, agents found a small amount of

methamphetamine with packaging material, two scales, and

several guns, including a sawed-off shotgun with Boykin’s

fingerprints.

II. Proceedings in the District Court

Boykin and Patrick were charged by indictment with one

count of conspiracy to distribute and possess with intent to

distribute methamphetamine and cocaine, in violation of

21 U.S.C. §§ 846 and 841(a)(1); six counts of distribution of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and

one count of distribution of cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Patrick pled guilty to the conspiracy count, but

Boykin proceeded to a jury trial. On March 4, 2011, the jury

returned its verdict, finding Boykin guilty of the conspiracy
UNITED STATES V. BOYKIN 9

count and six counts of distribution, and acquitting him of

one count of distribution of methamphetamine.

The Presentence Report (PSR) recommended a base

offense level of 34, plus a two-level increase under United

States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(b)(1) for

possession of a firearm, resulting in an Adjusted Offense

Level of 36. The PSR recommended 262 months of

incarceration, which was at the low end of the advisory

guideline range, after taking into account Boykin’s criminal

history level of IV.

The district court gave Boykin a two-level reduction for

acceptance of responsibility, which placed the Adjusted

Offense Level at 34. Finding that Boykin’s criminal history

was accurately stated in the PSR, the court concluded that the

guideline range was 210 to 262 months, and sentenced

Boykin to 210 months to avoid any sentencing disparity with

Patrick, who also received a sentence of 210 months.

Boykin filed a timely notice of appeal, challenging the

sufficiency of the evidence on Count Six and arguing that the

district court erred by not granting a downward departure for

sentencing manipulation, and by not finding his criminal

history to be overstated. After initial briefing was complete,

Boykin filed a pro se supplemental brief, arguing the district

court committed plain error by applying a two-level

enhancement for possession of a firearm, and by failing to

conduct an individualized analysis of his participation in the

conspiracy. On September 24, 2014, Boykin’s counsel sent

a letter to the Court, requesting remand in light of

Amendment 782 to the U.S. Sentencing Guidelines.
10 UNITED STATES V. BOYKIN

ANALYSIS

I. Sufficiency of the Evidence

The court reviews de novo a challenge to the sufficiency

of the evidence. United States v. Antonakeas, 255 F.3d 714,

723 (9th Cir. 2001). “Viewing the evidence in the light most

favorable to the government, [the Court] must determine

whether any rational jury could have found [the defendant]

guilty of each element of the crime beyond a reasonable

doubt.” United States v. Esquivel-Ortega, 484 F.3d 1221,

1224 (9th Cir. 2007) (citation omitted). The trier of fact has

the responsibility “to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S.

307, 319 (1979).

A conviction for possession with intent to distribute may

be based on one of three legal theories: (1) co-conspirator

liability; (2) aiding and abetting; and (3) exercising dominion

and control over the contraband. United States v. SanchezMata, 925 F.2d 1166, 1168 (9th Cir. 1991) (citations

omitted).

Boykin argues the government failed to establish that he

actuallyor constructivelypossessed the methamphetamine on

February 9, 2007. However, because the jury was instructed

on an aiding and abetting theory of liability, it was not

necessary for the government to show actual or constructive

possession, or that Boykin actually sold the drugs. See

United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989). 

Rather, it was enough to show that Boykin associated with

the criminal venture, participated in it, and sought, by his

actions, to make it a success. See id. Circumstantial evidence
UNITED STATES V. BOYKIN 11

may support a conviction for aiding and abetting. United

States v. Corona-Verbera, 509 F.3d 1105, 1119 (9th Cir.

2007).

Here, there was sufficient evidence for a rational jury to

find that Boykin aided and abetted Patrick’s distribution of

methamphetamine on February 9, 2007. Patrick arranged the

transaction and told Walton to come to 251 Wilbur Avenue. 

Both Patrick and Boykin were there when Walton arrived. 

After leaving briefly, Patrick and Walton returned to 251

Wilbur Avenue. Boykin, who had also left, returned to 251

Wilbur Avenue as Patrick was making trips back and forth

between the residence and Patrick’s truck, where Walton

remained and where the drug transaction ultimately took

place. The government’s evidence also showed three phone

calls between Boykin and Patrick on February 9, 2007, two

of which were close in time to the transaction.5 Finally, law

enforcement found drug paraphernalia, guns, and money

when they executed search warrants at Boykin’s residence

and 251 Wilbur Avenue. See Gillock, 886 F.2d at 222

(holding an intent to distribute could be inferred from the gun

found in the defendant’s closet and the large quantities of lab

5 Boykin correctly notes that the first call was from Boykin to Patrick. 

However, the second call was from Patrick to Boykin. The Court is bound

to respect that the jury has “exclusive province . . . to . . . resolve

evidentiary conflicts, and draw reasonable inferences from proven facts.”

See Gillock, 886 F.2d at 222. This rule applies to these calls, and also

applies to Boykin’s argument that either the unidentified white male who

entered the residence around the same time he did, or the unidentified

Hispanic male with whom Patrick and Walton met at Wilbur Market,

could have supplied the methamphetamine. Those facts were for the jury

to decide, and even if construed as the defendant contends, they do not

necessarily mean Boykin did not aid and abet the transaction.
12 UNITED STATES V. BOYKIN

equipment and methamphetamine found in the residences of

the defendant’s associates).

Considering all of the evidence, including the conspiracy

and the fact that Boykin and Patrick collaborated on multiple

drug transactions, in person and by phone, a rational jury

could have found that Boykin and Patrick collaborated on the

drug transaction of February 9, 2007. See United States v.

Smith, 832 F.2d 1167, 1172 (9th Cir. 1987) (“Hence, this is

not a case involving nothing more than a simple, isolated

purchase.”). For the aforementioned reasons, we affirm the

jury’s conviction on the February 9, 2007 count for

distribution of methamphetamine.

II. Sentencing

A. Sentencing Manipulation

The Ninth Circuit has not always been careful in

recognizing 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 States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999);

United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994)

(describing “sentencing entrapment” as “sentence factor

manipulation”). When a defendant can show he was

predisposed to commit a minor or lesser offense, but was

entrapped to commit a greater offense, subject to greater

punishment, he may be eligible for a downward departure or

variance for “sentencing entrapment.” United States v. Mejia,

559 F.3d 1113, 1118 (9th Cir. 2009). In contrast, “sentencing

manipulation” occurs when the government increases a

defendant’s guideline sentence by conducting a lengthy
UNITED STATES V. BOYKIN 13

investigation 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). In other

words, what sets “sentencing entrapment” apart from

“sentencing manipulation” is that, in the latter, “the judicial

gaze should, in the usual case, focus primarily—though not

necessarily exclusively—on the government’s conduct and

motives.” United States v. Fontes, 415 F.3d 174, 181–82 (1st

Cir. 2005).

To prove sentencingmanipulation, a defendant must show

“that the officers engaged in the later drug transactions solely

to enhance his potential sentence.” Torres, 563 F.3d at 734. 

Cases from other circuits have granted relief for sentencing

manipulation in “only the extreme and unusual case”

involving “outrageous governmental conduct.” See Fontes,

415 F.3d at 180; United States v. Beltran, 571 F.3d 1013,

1018–19 (10th Cir. 2009) (explaining that, based on due

process principles, sentencing manipulation “allow[s] a court

to modify a sentence if considering the totality of the

circumstances, ‘the government’s conduct is so shocking,

outrageous and intolerable that it offends ‘the universal sense

of justice’’”). If a court finds sentencing manipulation, a

downward departure should be applied to the guidelines

range, “since such manipulation artificially inflates the

offense level by increasing the quantity of drugs included in

the relevant conduct.” Torres, 563 F.3d at 734–35.

Although Boykin argued below that his sentence should

be reduced due to sentencing entrapment, the substance of his

argument and the district court’s analysis indicate that Boykin

mislabeled the argument. In fact, Boykin’s challenge

addressed the conduct of law enforcement rather than his

predisposition. Given the thrust of Boykin’s argument and
14 UNITED STATES V. BOYKIN

the lack of precision with which we have previously used the

terms “sentencing entrapment” and “sentencing

manipulation,” we review the district court’s factual findings

in the sentencing phase for clear error. See United States v.

Castaneda, 94 F.3d 592, 594 (9th Cir. 1996). “In order to

reverse a district court’s factual findings as clearly erroneous,

we must determine that the district court’s factual findings

were illogical, implausible, or without support in the record.” 

United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010).

To support hissentencingmanipulation argument, Boykin

points to three facts that allegedlymotivated law enforcement

to induce further controlled purchases from the Boykins:

(1) the FBI memo reviewing the progress of the investigation

against Patrick, Boykin, and others, and explaining that

additional drug buys would be necessary to reach the

sentencing goals set by the U.S. Attorney’s Office;

(2) Detective Oakes’ close relationship with confidential

source Housley; and (3) the close relationship of Detective

Oakes’ brother, Johnny, to Boykin and Patrick. Boykin

argues that Detective Oakes’ participation in the investigation

constitutes outrageous government conduct, which supports

a finding of sentencing manipulation under a test employed

by the Tenth Circuit. See Beltran, 571 F.3d at 1017–18. In

the alternative, Boykin argues that he was entitled to a

downward departure because law enforcement engaged in

additional transactions solely to increase his sentence, urging

us to follow precedent from the Eighth Circuit. See Torres,

563 F.3d at 734.

Regardless of the test employed, Boykin fails to

demonstrate that the district court’s findings were clearly

erroneous. With regard to the test in Beltran, although the

Court is deeply troubled by the participation of Detective
UNITED STATES V. BOYKIN 15

Oakes, the investigation fell just shy of constituting

outrageous government conduct. As a result of his unusually

close relationship with informant Housley and his brother’s

friendship with the Boykins, Oakes clearly had multiple

incentives to prolong the investigation.6 Furthering this

perception, Oakes gave erroneous testimony at trial regarding

his response to learning of Housley’s arrest on fraud charges,

requiring a stipulation at trial between the parties that Oakes

in fact continued working with, and paying, Housley after the

arrest. However, despite Oakes’ conflict of interest, because

his role was limited and he was being supervised, rather than

directing the investigation, his conduct was “wrong and

troubling,” but not so “extreme and outrageous” as to warrant

a downward departure for sentencing manipulation. See

Fontes, 415 F.3d at 183.7

With respect to the Torres test, Boykin asks the Court to

hold that it is improper for the government to continue an

6 Boykin also notes that Detective Oakes arranged for NET-5 to pay for

Housley’s apartment and utilities. Detective Oakes also gave her his

home phone number, which he admitted was unusual. However, NET-5

apparently had a meeting to approve these payments, and Detective Oakes

testified that agents kept a close eye on Housley because NET-5 paid for

her apartment.

7 The investigation of the Boykins was not an operation “created and

staged” by law enforcement, nor was law enforcement “trolling for

targets” based on economic and social conditions in the community. See

United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013). Rather, in

investigating the Boykins, law enforcement was infiltrating a preexisting

criminal organization. See id. at 302. (“It is not outrageous . . . to

approach individuals who are already involved in or contemplating a

criminal act, or to provide necessary items to a conspiracy.”). Therefore,

the due process concerns raised and rejected in Black are not implicated

in this case.
16 UNITED STATES V. BOYKIN

investigation merelyto enhance the defendant’s sentence, and

that mitigating a defendant’s sentence is a fitting tool to deter

such improper investigations. This Court has previously held

that a district court may consider the full amount of drugs

involved when law enforcement arranges multiple controlled

drug purchases for legitimate investigatory reasons. United

States v. Baker, 63 F.3d 1478, 1500 (9th Cir. 1995). Thus,

the issue here is whether legitimate reasons existed for the

investigation or whether it was solely intended to increase

Boykin’s sentence.

In Baker, this Court rejected the defendant’s argument

that his conviction should be reversed because the

government stretched out its investigation to increase the

drug quantity and potential charges against the defendant

after it had sufficient evidence to indict. Id. The Court

“decline[d] to adopt a rule that, in effect, would find

‘sentencing manipulation’ whenever the government, even

though it has enough evidence to indict, opts instead to wait

in favor of continuing its investigation” because “[s]uch a

rule ‘would unnecessarily and unfairly restrict the discretion

and judgment of investigators and prosecutors,’” and

“[p]olice . . . must be given leeway to probe the depth and

extent of a criminal enterprise, to determine whether

coconspirators exist, and to trace . . . deeper into the

distribution hierarchy.” Id. (internal quotations and citations

omitted). Finally, the Court emphasized that because “the

government bears the burden of proving its case beyond a

reasonable doubt, it must be permitted to exercise its own

judgment in determining at what point in an investigation

enough evidence has been obtained.” Id.

Here, there was evidence that the government extended its

investigation to build a stronger case against Boykin. Of
UNITED STATES V. BOYKIN 17

particular concern was that the government’s first two

confidential sources—Rios and Housley—were both

convicted of serious offenses during the period they were

acting as confidential sources against the Boykins. Therefore,

it was reasonable for law enforcement to extend the

investigation with more controlled purchases by a more

credible confidential source. This is precisely what law

enforcement did in having Walton make controlled purchases

in February and March 2007.

Further, the existence of the FBI memo did not require the

district court to conclude that the investigators extended the

investigation solely to enhance Boykin’s potential sentence. 

Although the memo specifically recommended drug volumes

to establish charges, its text is too ambiguous to establish that

the agents’ sole intent was to enhance Boykin’s sentence,

because it discusses several defendants earlier in the text and

the phrase in question does not clearly refer to Boykin:

Additional drug buys from several of the

captioned subjects will be necessary to reach

the preferred thresholds established by the

United States Attorney’s Office in the Eastern

District of California. It is recommended by

their office that 50 grams or more of

methamphetamine or 500 grams or more of a

cocaine powder be purchased from one

individual to secure a five (5) year mandatory

minimum sentence. This case continues.

In fact, on January 31, 2007, when the memo was

circulated, Boykin had already participated in controlled

purchases involving over 50 grams of methamphetamine,

which was the amount described in the memo as necessary to
18 UNITED STATES V. BOYKIN

meet the five-year statutory mandatory minimum sentence.8

Thus, the district court did not clearly err by not finding the

FBI memo to be a basis for a charge of sentencing

manipulation.

B. Criminal History

Boykin also argues the district court erred by failing to

look at the underlying facts of his criminal history when

deciding if it was overstated.

The Court reviews de novo a district court’s interpretation

of sentencing guidelines, and the application of the

sentencing guidelines is reviewed for abuse of discretion. 

United States v. Hernandez-Guerrero, 633 F.3d 933, 935 (9th

Cir. 2011). “A sentencing court is permitted under U.S.S.G.

§ 4A1.3 to depart from a recommended sentence if it believes

that a defendant’s criminal history category significantly

over-represents the seriousness of his criminal record or the

likelihood that he will commit further crimes.” United States

v. Govan, 152 F.3d 1088, 1094 (9th Cir. 1998). Furthermore,

the district court retains discretion to depart downward from

the guidelines should it find “mitigating circumstances of a

kind, or to a degree, not adequately taken into consideration

by the Sentencing Commission in formulating the guidelines

that should result in a sentence different from that described.” 

United States v. Brown, 985 F.2d 478, 481 (9th Cir. 1993)

8 On August 29, 2006, Boykin distributed two ounces of

methamphetamine. On September 13, 2006, Boykin distributed oneeighth of an ounce of cocaine. On September 28, 2006, Boykin

distributed eight ounces of methamphetamine. One ounce is equal to

approximately 28.35 grams, which means Boykin had met the 50 gram

threshold well before the FBI memo was circulated.
UNITED STATES V. BOYKIN 19

(quoting 18 U.S.C. § 3553(b)) (alteration omitted). The

district court may consider “without limitation, any

information concerning the background, character and

conduct of the defendant, unless otherwise prohibited [by the

guidelines or other law].” Id. (citing U.S.S.G. § 1B1.4).

At the sentencing hearing, Boykin gave a detailed

explanation of the facts and circumstances surrounding his

convictions for vandalism and a loud noise disturbance, and

argued that the facts underlying those offenses were not

sufficiently egregious to warrant two additional points being

counted toward his criminal history category. The district

court responded that “you get on a slippery slope when you

start trying to look at the underlying facts and look beyond

the judgment in determining the criminal history,” and stated

that the “criminal history [was] calculated properly,” and that

it did not “believe that the criminal-history category

[overstated] the seriousness of the criminal history.” This

ruling was not an abuse of discretion, and the trial court was

not required to give a further explanation.

Boykin further objects to the addition of two criminal

history points for a 2001 misdemeanor conviction for

disturbance of the peace, which Boykin argues was part of a

plea deal in which the prosecutor found that the domestic

abuse victim’s allegations were not credible. He also objects

to the addition of one point for a 2005 misdemeanor

conviction for vandalism, in which Boykin arrived at a

burning apartment allegedly believing his children were

inside, discovered his children were fine, and then became

obstructive when officers allegedly treated him

contemptuously.
20 UNITED STATES V. BOYKIN

It was not an abuse of discretion for the court to

determine these incidents were properly calculated in

determining Boykin’s criminal history.

C. Weapon and Coconspirator Enhancements

Finally, Boykin argues that the district court erred by

applying a two-level enhancement for firearm possession. 

This Court reviews for clear error the district court’s factual

determination that the firearm enhancement in U.S.S.G.

§ 2D1.1(b)(1) applies. United States v. Kelso, 942 F.2d 680,

681 (9th Cir. 1991).

The defendant argues the district court never connected

him to the handgun. However, Boykin misinterprets both the

enhancement and his burden. The two-level sentencing

adjustment is appropriate “unless it is clearly improbable that

the weapon was connected with the offense.” U.S.S.G.

§ 2D1.1 n. 3 (2010). The government “must prove

possession by a preponderance of the evidence before the

court can apply the two-level increase under § 2D1.1(b)(1).” 

United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997)

(quoting United States v. Mergerson, 4 F.3d 337, 350 (5th

Cir. 1993)).

This Court has defined “possession” broadly. United

States v. Pitts, 6 F.3d 1366, 1372 (9th Cir. 1993). “To

demonstrate constructive possession the government must

prove ‘a sufficient connection between the defendant and the

contraband to support the inference that the defendant

exercised dominion and control over the [contraband].’”

Kelso, 942 F.2d at 682 (quoting United States v. Disla,

805 F.2d 1340, 1350 (9th Cir. 1986)). Where a defendant is

convicted of conspiracy, the firearm enhancement can be
UNITED STATES V. BOYKIN 21

based on all of the offense conduct, not just the crime of

conviction. United States v. Willard, 919 F.2d 606, 610 (9th

Cir. 1990), cert. denied, 502 U.S. 872 (1991).

Here, agents recovered several firearms from the

residence at 251 Wilbur Avenue, including a sawed-off

shotgun with Boykin’s fingerprints. The evidence showed

Boykin engaged in numerous drug transactions at 251 Wilbur

Avenue. Thus, the court did not clearly err by finding Boykin

possessed a weapon connected with the offense. See Pitts,

6 F.3d at 1372.

Boykin also argues the district court failed to make a

proper individualized assessment of his relevant conduct in

the conspiracy. He argues his tenuous connection with the

transaction of February 9, 2007 made that drug quantity

unforeseeable to him.

For reasons alreadydiscussed, the evidence was sufficient

to convict Boykin of aiding and abetting the transaction of

February 9, 2007. Therefore, the drug quantity attributed to

him was foreseeable. See Willard, 919 F.2d at 610.

For the foregoing reasons, we affirm the sentence

imposed by the district court.9

AFFIRMED.

9 Because Boykin may move the district court for relief under

Amendment 782 to the Guidelines, the Court declines to remand the case

on those grounds. See 18 U.S.C. § 3582(c)(2).