USA V. TYLER CONKLIN, No. 21-50150 (9th Cir. 2022)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 21-50150 v. D.C. Nos. 8:20-cr-00046-JVS-1 8:20-cr-00046-JVS TYLER JACOB CONKLIN, AKA Jack Auckland AKA Jake, AKA John Roberts, MEMORANDUM* Plaintiff-Appellee, Defendant-Appellant. 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. * 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. 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. RodriguezGamboa, 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 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-thefact 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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