                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          JUL 12 2017
                                                                         MOLLY C. DW YER, CLERK
                             FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                         No.   15-30296

              Plaintiff-Appellee,                 D.C. No.
                                                  2:14-cr-00023-DLC-1
 v.                                               District of Montana,
                                                  Butte
ANGEL ITURBE-GONZALEZ,

              Defendant-Appellant.                ORDER AMENDING


Before: PAEZ and CALLAHAN, Circuit Judges, and ENGLAND,* District Judge.

      The panel has voted to deny the petition for rehearing. Judge Paez and

Judge Callahan vote to deny the petition for rehearing en banc and Judge England

recommends denial of the petition for rehearing en banc. The full court has been

advised of the petition for rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

      The memorandum disposition filed on February 14, 2017 is amended. A

amended memorandum disposition is being filed concurrently with this order. No

further petitions for rehearing will be entertained.

      The petition for rehearing and for rehearing en banc are denied.




      *
             The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 12 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-30296

              Plaintiff-Appellee,                D.C. No. 2:14-cr-00023-DLC-1

 v.                                              AMENDED
                                                 MEMORANDUM*
ANGEL ITURBE-GONZALEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                           Submitted February 6, 2017**
                               Seattle, Washington

Before: PAEZ and CALLAHAN, Circuit Judges, and ENGLAND,*** 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 Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
      Angel Iturbe-Gonzalez appeals his jury trial conviction for conspiracy to

distribute and possession with intent to distribute a controlled substance, and his

151-month sentence. Specifically, he alleges that: (1) the district court erred when

it admitted evidence of a prior arrest in 2012 and his subsequent arrest in 2015; (2)

the district court erred when it instructed the jury it could find that Iturbe-Gonzalez

conspired to distribute and possessed with intent to distribute either

methamphetamine or heroin, where the indictment charged Iturbe-Gonzalez with

conspiracy and possession of both methamphetamine and heroin; and (3) the

district court erred in denying Iturbe-Gonzalez safety valve relief upon sentencing.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     The district court did not abuse its discretion when it admitted

evidence of Iturbe-Gonzalez’s 2012 arrest with an appropriate cautionary

instruction. The evidence was admissible under Federal Rules of Evidence

404(b).1 See United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002) (citations

omitted) (providing that other acts evidence “may be admitted if: (1) the evidence

tends to prove a material point; (2) the other act is not too remote in time; (3) the

evidence is sufficient to support a finding that defendant committed the other act;

and (4) (in certain cases) the act is similar to the offense charged.”). Moreover, the

      1
       All future references to a “Rule” or “Rules” are to the Federal Rules of
Evidence.
                                           2
district court properly considered whether the probative value of that evidence was

substantially outweighed by its prejudicial impact under Rule 403 when it found

evidence concerning the quantity of drugs, types of drugs, and use of concealments

probative, but deemed evidence concerning firearms prejudicial and excluded it.

Id. Though brief, this analysis is sufficient, and the district court thus acted within

its discretion in admitting the evidence.2

      The district court likewise did not abuse its discretion when it admitted

evidence of Iturbe-Gonzalez’s 2015 arrest with the same cautionary instruction.

The 2015 arrest was not an “other act” under Rule 404(b), but was necessary to tell

the story of the charged crime and was thus inextricably intertwined with the

conduct underlying the charged crime. As such, it was not subject to the

limitations of Rule 404(b). See, e.g., United States v. Williams, 291 F.3d 1180,

1189 (9th Cir. 2002) (overruled on other grounds by United States v. Gonzales,

506 F.3d 940 (9th Cir. 2007) (en banc)). We thus find that the district court




      2
         Regardless, even if the Rule 403 analysis was somehow deficient, which it
was not, any error was harmless because the evidence was highly probative, and
further because there was additional overwhelming evidence against Iturbe-
Gonzalez aside from his 2012 arrest.


                                             3
properly admitted evidence of the 2015 arrest as relevant evidence under

Rule 402.3

      2.     We further hold that the district court did not abuse its discretion

when it instructed the jury that it could find Iturbe-Gonzalez conspired to distribute

and possessed with intent to distribute either methamphetamine or heroin, even

though the indictment charged Iturbe-Gonzalez with conspiracy and possession

with intent to distribute both methamphetamine and heroin. Type and quantity of

drugs are not elements of the crimes with which the government charged Iturbe-

Gonzalez, and thus are not elements that the government had to prove. See, e.g.,

United States v. Toliver, 351 F.3d 423, 431 (9th Cir. 2003) (“simply because the

government included drug quantity and type allegations in [its indictment], that did

not mean that those factual allegations must be treated as formal elements of the

basic offense under section 841(a)(1)”); United States v. Vera, 770 F.3d 1232,

1249–50 (9th Cir. 2014) (explaining that quantity and type are the “functional

equivalent of an element” for sentencing purposes and do not affect the validity of

the base conviction). The district court thus permissibly concluded that although

the indictment was pled in the conjunctive, it was appropriate to instruct the jury




      3
        Any error or deficiency in the district court’s Rule 403 analysis of the
2015 arrest would have been harmless.
                                           4
that Iturbe-Gonzalez could be found guilty of the charged crime if it found the

government proved its case with regard to either controlled substance.4

      3.     The district court did not commit clear error in denying Iturbe-

Gonzalez his request for safety valve relief. A defendant must meet five

requirements to obtain safety valve relief: (1) the defendant does not have more

than one criminal history point; (2) the defendant did not use violence or credible

threats thereof, or have possession of a firearm or other dangerous weapon in

connection with the offense; (3) “the offense did not result in death or serious

bodily injury to any person”; (4) the defendant was not an organizer or leader in

the offense and was not engaged in a continuing criminal enterprise; and–as is

relevant here–(5) “the defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the offense or offenses that

were part of the same course of conduct or of a common scheme or plan . . . .” 18

U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Though it was undisputed that Iturbe-

Gonzalez satisfied criteria (1) through (4), testimony revealed that he did not fully

and truthfully disclose all information surrounding his offense as required by

§ 3553(f)(5) and the sentencing guidelines. Iturbe-Gonzalez plainly stated that he

would not answer questions related to one of the potential players in the charged

      4
        In any event, any error was harmless as the jury ultimately found both
drug quantities.
                                           5
offenses. Because he refused to provide all information he had concerning the

individual, his relationship with the individual, and the quantities of drugs he and

the individual handled, the district court properly found that he did not meet the

fifth of five safety valve requirements and therefore properly denied safety valve

relief.

          Appellant’s conviction and sentence are AFFIRMED.




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