Opinion
No. 07-50451.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 4, 2008.
USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
David J. Zugman, Esq., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-01-01652-JTM.
Before: SCHROEDER, KLEINFELD, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Viktor Savchenko appeals from the 300-month sentence imposed on resentencing, following his jury-trial conviction for conspiracy to possess cocaine on board a vessel, and possession of cocaine with intent to distribute on board a vessel, both in violation of 46 U.S.C. § 1903(a)(c)(1)(C)(f), and aiding and abetting, in violation of 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Savchenko contends that the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence based on its own factual findings regarding: (1) the quantity of drugs; and (2) his role as the captain of a vessel carrying a controlled substance. This contention is foreclosed because none of the district court's factual findings raised the statutory maximum sentence set forth in 21 U.S.C. § 960(b). See United States v. Booker, 543 U.S. 220, 233-34, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Moreland, 509 F.3d 1201, 1219-21 (9th Cir. 2007).
Savchenko further contends that this Court cannot review his sentence for reasonableness without itself violating Apprendi. This contention lacks merit. See Booker, 543 U.S. at 261-64, 125 S.Ct. 738; see also United States v: Dare, 425 F.3d 634, 641 (9th Cir. 2005) (explaining that an intermediate appellate court cannot overrule a decision of the Supreme Court or even anticipate an overruling by the Supreme Court).
Finally, Savchenko contends that his sentence is unreasonable because the district court incorrectly focused on imposing a sentence that was "reasonable," rather than one that was "sufficient, but not greater than necessary" to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). We conclude that the district court did not commit procedural error and that Savchenko's sentence is reasonable. See United States v. Carty, 520 F.3d 984, 994-95 (9th Cir. 2008) (en banc); see also Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 600-02, 169 L.Ed.2d 445 (2007).