UNITED STATES of America, Plaintiff-Appellee, v. Torrey MITCHELL, Defendant-Appellant, 234 F. App'x 807

MEMORANDUM 1. The district court did not abuse its discretion in instructing the jury as to conspiracy. The instructions, read as a whole, adequately advised the jury that it had to find Mitchell to be a member of the conspiracy in order to convict him. See United States v. Shryock, 342 F.3d 948, 986 (9th Cir.2003) (examining whether “the instructions as a whole” were misleading). 2. Mitchell contends that the district court erred by applying a 2-level sentencing enhancement for obstruction of justice. See U.S.S.G. § 3C1.1 (2001).

The transcript contains many inaudible segments, but it does show that the district court started with a base offense level of 6, applied an 8-level enhancement for loss and then used a 2-level downward adjustment for sentencing disparity. The ultimate offense level was 12, so even though the district court considered an obstruction of justice enhancement, it did not apply it. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.