United States v. Savchenko

MEMORANDUM ** 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)(l)(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). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.