United States of America v. Darren McQueen

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARREN MCQUEEN,
Defendant - Appellant.
No. 14-30158
D.C. No. 2:14-cr-00031-JLQ-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior District Judge, Presiding
Argued and September 3, 2015
Seattle, Washington
Before: McKEOWN, GOULD, and N.R. SMITH, Circuit Judges.
Darren McQueen appeals the 180-month sentence imposed by the district
court following his guilty plea to one count of distribution of a controlled
substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
SEP 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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The district court did not commit significant procedural error during
sentencing. See Gall v. United States, 552 U.S. 38, 50-51 (2007); United States v.
Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). The district court first
calculated an appropriate sentence under the Guidelines and then sufficiently
explained its reasons for imposing a higher sentence in light of the 18 U.S.C.
§ 3553(a) factors. Carty, 520 F.3d at 991-92. Its failure to consider the
applicability of a lower criminal history category before departing upward to
criminal history category VI does not constitute error. U.S.S.G. § 4A1.3; see also
Gall, 552 U.S. at 51. The record reflects that the district court neither relied on
McQueen’s history of prior arrests nor double-counted conduct already accounted
for when it departed upwards. The district court gave sufficient notice under
Federal Rule of Criminal Procedure 32(h) that it was contemplating an upward
departure under the Guidelines.
We also conclude that the district court did not abuse its discretion by
imposing a 180-month sentence. See Gall, 552 U.S. at 51. The sentence was
substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality
of the circumstances. See id.
AFFIRMED.
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