                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 20 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30082

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00096-BLW-3

  v.
                                                 MEMORANDUM*
LUCIO LANDEROS-VALDEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                         Argued and Submitted July 9, 2013
                                 Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       Plaintiff Lucio Landeros-Valdez (“Landeros-Valdez”) argues that there is

insufficient evidence to support his conviction for possession with the intent to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and

18 U.S.C. § 2. Landeros-Valdez also challenges his mandatory minimum sentence


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of twenty years, pursuant to 21 U.S.C. § 841(b)(1)(A)(viii). The facts of this case

are known to the parties and there is no need to restate them. We AFFIRM.

      1. Landeros-Valdez was convicted at a joint trial with co-defendant Jose

Octavio Arreola-Beltran (“Arreola-Beltran”). A third co-defendant, Jose Gabriel

Virgen, testified as a government witness. At trial, the government presented

evidence that Landeros-Valdez aided and abetted Arreola-Beltran. To support this

theory, the government provided evidence showing: (1) Arreola-Beltran committed

the offense of possession with intent to distribute methamphetamine; (2) Landeros-

Valdez knowingly and intentionally aided, counseled, commanded, induced, or

procured Arreola-Beltran to commit the crime; and (3) Landeros-Valdez acted as

an aider and abettor before the crime was completed. United States v. Delgado,

357 F.3d 1061, 1067 (9th Cir. 2004). Thus, “[v]iewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found” that

the essential elements of the crime of possession with the intent to distribute

methamphetamine were proved beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 334 (1979) (internal quotation marks omitted); United States v.

Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000).

      2. Landeros-Valdez objects to the imposition of a mandatory minimum

twenty year sentence pursuant to § 841(b)(1)(A)(viii). Landeros-Valdez’s opening


                                           2
brief conceded that because Landeros-Valdez did not object to the sentence

enhancement before the district court, this court should review for plain error. Fed.

Rule App. Proc. 28(a)(9)(B) (the appellant is required to identify the standard of

review in his or her opening brief). Landeros-Valdez’s opening brief did not cite

Ninth Circuit precedent that states that we are not bound by plain error review. Cf.

United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir. 2001).

Because this issue was not raised in Landeros-Valdez’s opening brief, this

argument is waived. Image Technical Serv., Inc. v. Eastman Kodak Co., 136 F.3d

1354, 1356-57 (9th Cir. 1998).

      To prevail under plain error, Landeros-Valdez must show an error: (1) that

has not been intentionally relinquished or abandoned, (2) that is clear or obvious,

(3) that affected the outcome of the district court proceedings, and (4) that

seriously affects the fairness, integrity, or public reputation of the judicial

proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009). Landeros-

Valdez cannot meet part two of this test because the application of the § 841

sentence enhancement was not a “clear or obvious” error. Id.

      AFFIRMED.




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