United States of America v. TYLER JACOB CONKLIN, AKA Jack Auckland AKA Jake, AKA John Roberts

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYLER JACOB CONKLIN, AKA Jack
Auckland AKA Jake, AKA John Roberts,
Defendant-Appellant.
No. 21-50150
D.C. Nos.
8:20-cr-00046-JVS-1
8:20-cr-00046-JVS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted November 17, 2022**
Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and KENNELLY,***
District Judge.
FILED
NOV 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.

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Tyler Conklin appeals his sentence for possession of methamphetamine with
intent to distribute. 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii). The district court
applied the “career offender” enhancement, Sentencing Guidelines § 4B1.1, in
determining Conklin’s sentence. The court relied on United States v. Rodriguez-
Gamboa, 927 F.3d 1148 (9th Cir. 2020), to conclude that Conklin had prior
convictions that qualified as “controlled substance offenses” for the purposes of §
4B1.1. Conklin argues that the district court violated due process by applying the
career offender enhancement because Rodriguez-Gamboa was published after
Conklin committed the offense. We have jurisdiction under 28 U.S.C. § 1291 and
we affirm.
Due process challenges to sentencing decisions based on allegations of
unforeseeable judicial construction receive de novo review. United States v.
Staten, 466 F.3d 708, 713 (9th Cir. 2006). When the district court errs in its
calculation of the recommended Guidelines sentence, harmless error review
applies. United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011).
Applying de novo review, we conclude that the district court did not err in
applying the career offender enhancement. In Bouie v. City of Columbia, 378 U.S.
347 (1964), the Supreme Court held that the Due Process Clause protects against
“an unforeseeable judicial enlargement of a criminal statute, applied retroactively”
2

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because such enlargement “operates precisely like an ex post facto law.” 378 U.S.
at 353. But this Court has repeatedly held that Bouie “applie[s] only to after-the-
fact increases in the scope of criminal liability and not to retroactive sentence
enhancements.” United States v. Dupas, 419 F.3d 916, 920 (9th Cir. 2005)
(quoting Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th Cir. 2002)) (emphasis in
original); see also United States v. Newman, 203 F.3d 700 (9th Cir. 2000); United
States v. Ruiz, 935 F.2d 1033 (9th Cir. 1991).
The only effect of our decision in Rodriguez-Gamboa was an enhancement
of Conklin’s sentence. The scope of criminal liability was not affected. Therefore,
the district court did not violate due process by relying on Rodriguez-Gamboa
when calculating Conklin’s sentence.
AFFIRMED.
3

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