United States of America v. Troy Eugene Damschen

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY EUGENE DAMSCHEN,
Defendant - Appellant.
No. 12-30390
D.C. No. 4:12-cr-00033-SEH
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted March 10, 2014**
Before: PREGERSON, LEAVY, and MURGUIA, Circuit Judges.
Troy Eugene Damschen appeals from the district court’s judgment and
challenges the 87-month sentence imposed following his guilty-plea conviction for
being a felon in possession of firearms and ammunition, in violation of 18 U.S.C.
§ 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The government contends that this appeal is barred by the appeal waiver in
FILED
MAR 17 2014
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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the parties’ plea agreement. We review de novo whether Damschen has waived his
right to appeal, see United States v. Bibler, 495 F.3d 621, 623 (9th Cir. 2007), and
conclude that ambiguity in the waiver language precludes enforcement of the
waiver, see United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009).
Damschen contends that the district court erred procedurally when it
assessed criminal history points for a 2012 Montana conviction that he contends
qualifies as relevant conduct to this instant offense. Because Damschen raised no
objection in the district court to the calculation of his criminal history category, our
review is for plain error. See United States v. Hammons, 558 F.3d 1100, 1103,
1105 (9th Cir. 2009). The district court did not plainly err because Damschen’s
state conviction was not required to be treated as relevant conduct under the
Guidelines. See U.S.S.G. § 1B1.3(a)(1) & cmt. n.9; § 4A1.2(a)(1) & cmt. n.1;
United States v. Cruz-Gramajo, 570 F.3d 1162, 1173 (9th Cir. 2009) (“Because
[defendant’s] state law offenses were not incorporated into the offense level
calculation, and were not required to be considered relevant conduct under
§ 1B1.3(a)(2), the state law offenses were not relevant conduct to the instant
offense under the provisions of § 1B1.3.”) (internal quotations omitted).
Damschen next contends that the district court erred procedurally by
imposing his sentence to run consecutively to his undischarged state sentences
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“without any reason or explanation.” We review for plain error, see United States
v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010), and find none.
The decision to impose a consecutive sentence was within the district court’s
discretion. See 18 U.S.C. § 3584; U.S.S.G. § 5G1.3(c) & cmt. n.3. The court
considered the 18 U.S.C. § 3553(a) factors and adequately explained the sentence.
See United States v. Fifield, 432 F.3d 1056, 1063-66 (9th Cir. 2005).
Because we find no grounds for reversal, we do not reach Damschen’s
contention that the matter should be remanded to a different district court judge.
AFFIRMED.
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