United States of America v. Kenneth J. Bowlan

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH J. BOWLAN,
Defendant - Appellant.
No. 08-30479
D.C. No. 9:07-CR-00056-DWM-3
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted November 3, 2009 **
Portland, Oregon
Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
Kenneth Bowlan appeals from the 84-month sentence imposed following his
plea of guilty to possession of methamphetamine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1).
FILED
NOV 13 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We review for abuse of discretion the district court’s determination that
hearsay testimony was sufficiently reliable to establish drug quantity for
sentencing purposes. See United States v. Berry, 258 F.3d 971, 976 (9th Cir.
2001). Because the hearsay statements regarding the quantity of drugs that Bowlan
possessed were neither inherently reliable nor corroborated by extrinsic evidence,
the district court abused its discretion by relying on them. See United States v.
Huckins, 53 F.3d 276, 279–80 (9th Cir. 1995). Accordingly, we vacate the
sentence and remand for resentencing on an open record pursuant to United States
v. Matthews, 278 F.3d 880, 889–90 (9th Cir. 2002) (en banc).
The district court did not violate Bowlan’s Fifth or Sixth Amendment rights
by imposing a sentence based on a drug quantity that was neither proved to a jury
nor admitted. Because the district court properly treated the Guidelines as advisory
and sentenced Bowlan below the statutory maximum, there was no constitutional
violation. See United States v. Booker, 543 U.S. 220, 233 (2005).
VACATED and REMANDED.

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