The district court correctly held that, considering the evidence at trial in the light most favorable to the prosecution, see United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc), a rational jury could have found beyond a reasonable doubt that McIntosh joined the drug-trafficking conspiracy intending to distribute narcotics, rather than simply purchasing drugs for his personal use. See United States v. Perez, 962 F.3d 420, 444 (9th Cir. 2020). The government presented intercepted phone calls and text messages between Devault and McIntosh in which Devault used the terms “black” and “heroin” interchangeably, McIntosh agreed to purchase $2500 of “black” from Devault (an amount inconsistent with personal use), and McIntosh referenced the “little pay” he was receiving from Devault for reselling the drugs. See United States v. Mendoza, 25 F.4th 730, 736 (9th Cir. 2022) (“We assess the entire course of dealing between alleged co-conspirators.”) (cleaned up). The government also presented testimony from another co-conspirator, Lance Medina, who testified that Devault told him McIntosh was involved in helping to re-sell the drugs within the prison.
The district court did not err by setting Devault’s federal sentence to commence after the completion of the state sentence he was serving (“consecutively”), rather than simultaneously (“concurrently”).
While it would have been better for the district court to explicitly address its reasons at sentencing, we can “infe[r]” an “adequate explanation . . . from the PSR [and] the record as a whole.” United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008). The district court specifically stated that it reviewed the presentence report, the objections to the report, the parties’ sentencing papers, and the case file. “[B]ecause ‘the record makes clear that the sentencing judge listened to each argument’ and ‘considered the supporting evidence,’ the district court’s statement of reasons for the sentence was ‘brief but legally sufficient.’” United States v. Carter, 560 F.3d 1107, 1117 (9th Cir. 2009) (quoting Rita v. United States, 551 U.S. 338, 339 (2007)). Devault was already serving a life sentence when he committed these additional crimes, so if the district court imposed a concurrent sentence, he would have received no additional punishment for these separate crimes. Given the serious nature of the offenses at issue, such a result would undermine the sentencing goal of deterrence.
Full case here: US v. LAMONT DEVAULT, US v. DEANDRE MCINTOSH, http://cdn.ca9.uscourts.gov/datastore/memoranda/2022/03/22/20-50187.pdf
Anton Vialtsin, Esq.
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