United States of America, Plaintiff-appellee, v. Reggie Lamont Toler, Defendant-appellant, 951 F.2d 364 (9th Cir. 1991)

MEMORANDUM^** 

Our careful review of the record satisfies us that there was sufficient evidence to support the conviction. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Pisello, 877 F.2d 762, 764 (9th Cir. 1989).

The jury instructions, considered as a whole were neither misleading or inadequate. See United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989). Toler could argue his theory of the case under the instructions given. We find no abuse of discretion.

To the extent that it involves a mixed question of law and fact, the district court's application of the Sentencing Guidelines is reviewed de novo. United States v. Davis, 922 F.2d 1385, 1387 (9th Cir. 1991). The district court's determination of the facts underlying its application of the Guidelines is reviewed for clear error. Davis at 1387-88. We find no error in the district court's career offender designation. Application Note 3 when read in conjunction with pages 5-10 of Toler's presentence report would justify an upward departure from a three point to a six point description. Further, Toler's prior offenses were not formally consolidated and the sentences were consecutive. We understand but reject his argument.

AFFIRMED.