                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 09 2012

                                                                           MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 11-10210               U.S. COURT OF APPEALS



              Plaintiff - Appellee,              D.C. No. 2:09-cr-00262-JCM-RJJ-
                                                 3
  v.

JUAN RODRIGUEZ, AKA Juan                         MEMORANDUM*
Rodriguez-Lopez,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                       Argued and Submitted April 19, 2012
                            San Francisco, California

Before: GOODWIN, REINHARDT, and MURGUIA, Circuit Judges.

       After a jury trial, Juan Rodriguez appeals from his conviction on three charges

and from the imposition of a 248-month prison sentence. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the convictions but vacate the sentence and remand.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    Rodriguez challenges the jury instruction on the 18 U.S.C. § 924(c) charge. We

review for plain error. United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006).

      Section 924(c) creates a single offense that may be proven by two theories:

carrying a firearm during and in relation to a predicate crime, or possessing a firearm

in furtherance of such a crime. Id. at 1157-61. The district court instructed the jury

only on the “carrying during and in relation to” theory. Rodriguez argues that this was

error because the government presented a “possession in furtherance” theory at trial.

We disagree. While the government indicted Rodriguez on both theories, it had to

prove only one in order to convict him. United States v. Booth, 309 F.3d 566, 572 (9th

Cir. 2002). The district court gave a sufficient instruction on the “carrying during and

in relation to” theory, and the jury “is presumed to follow the instructions given to it.”

United States v. Heredia, 483 F.3d 913, 923 (9th Cir. 2007) (en banc). Rodriguez’s

argument therefore fails.

2.    Rodriguez challenges the sufficiency of the evidence to convict him of the

conspiracy and § 924(c) charges. The standard of review is contested. We need not

resolve whether our review is de novo or for plain error, however, as Rodriguez’s

challenge fails under even the more generous standard. The question before us is

“whether ‘after 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


                                           -2-
a reasonable doubt,’” United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010)

(en banc), and we answer that question in the affirmative.

      There is no question that a conspiracy existed; the only question is whether

Rodriguez participated in it. “The elements of drug conspiracy under the statute at

issue are: (1) an agreement to accomplish an illegal objective, and (2) the intent to

commit the underlying offense.” United States v. Herrera-Gonzalez, 263 F.3d 1092,

1095 (9th Cir. 2001). Three items of evidence are sufficient for the jury reasonably to

have concluded that Rodriguez participated in the conspiracy.

      First, the jury could have found from the testimony of Officers Guerra and

Murray that Rodriguez observed the meeting at McDonald’s from the Buffalo Bill’s

parking lot. It could have inferred that Rodriguez was providing surveillance and

security for the meeting; otherwise, he would not likely have been sitting alone in a

parking lot, away from his companions. Cf. United States v. Penagos, 823 F.2d 346,

348 (9th Cir. 1987). Rodriguez argues for the first time on appeal that video footage

of the Chevron parking lot shows him parked there, rather than at Buffalo Bill’s,

during the meeting. Aside from the fact that he failed to make this argument to the

jury, it is beside the point: our role is to determine not what actually happened but

what the jury was permitted to find. The officers’ testimony that they found Rodriguez




                                         -3-
in the Buffalo Bill’s lot after the meeting took place is sufficient circumstantial

evidence for the jury to have found that Rodriguez was in that lot during the meeting.

       Rodriguez’s actions on the freeway also support his conviction. Several officers

testified that Rodriguez accelerated to a high speed after his companions’ vehicles

were pulled over and that he took two miles to pull over once the pursuing officers

activated their lights and sirens. “Evidence of flight is generally admissible as

evidence of consciousness of guilt and of guilt itself”; once the trial judge admits the

evidence as relevant, its “probative value . . . is a question of fact for the jury.” United

States v. Harris, 792 F.2d 866, 869 (9th Cir. 1986). The jury could reasonably have

found that Rodriguez tried to evade officers and interpreted his having done so as

evidence that he was a participant in the conspiracy, not an innocent bystander on a

family trip to Las Vegas. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

       The presence of a loaded handgun in Rodriguez’s car is the strongest evidence

against him. Although Rodriguez testified that he was “pretty sure” the safety was on,

and although the gun was holstered, it was otherwise ready to fire: Officer Zidzik

testified that the hammer was cocked, that a round of ammunition was in the chamber,

and that an apparently full magazine was attached. Zidzik’s testimony that he heard

an object strike the inside of the car door as he approached, and that only the gun

could have made that noise, supports a finding that Rodriguez was holding the gun


                                            -4-
just after being pulled over—not the act of someone who has simply forgotten about

the presence of the gun after using it at a shooting range, as Rodriguez claimed he had,

or who is along for an innocent family trip to Las Vegas.

         Taken together and viewed in the light most favorable to the government, the

evidence that Rodriguez surveilled the meeting at McDonald’s, that he sped away

from officers on the highway, and that he had with him a cocked and loaded handgun

would allow a reasonable jury to find that he was guilty of the crimes with which he

was charged. We reject Rodriguez’s argument that the evidence was insufficient.

3.       Rodriguez argues that the government breached its obligations by failing to

preserve the clothing and toiletries found in his truck. We review de novo, United

States v. Flyer, 633 F.3d 911, 915-16 (9th Cir. 2011), as Rodriguez preserved the

claim.

         Even assuming that the evidence in question was actually (rather than only

potentially) exculpatory, or that the government acted in bad faith by failing to

preserve it, Rodriguez’s claim must fail unless he was “unable to obtain comparable

evidence.” California v. Trombetta, 467 U.S. 479, 489 (1984). That is not the case

here. Although Rodriguez could not present the jury with the actual clothing and

toiletries that he possessed at the time of his arrest, he was able to show a photograph

of the clothing and toiletries in his truck, and the prosecutor conceded in closing


                                          -5-
argument that the photograph “shows there’s some clothing.” Rodriguez is correct that

the items in the photograph appear strewn about, rather than neatly packed as if for a

vacation, but he does not explain why the retention of the physical items would have

enabled him to show the jury any more effectively the condition in which they had

appeared in his truck at the time of his arrest. The only evidence that would have been

more useful to Rodriguez than the photograph he was able to present is one that

showed the interior of the truck prior to the search, which disrupted the condition of

his belongings. Rodriguez does not argue that such a photograph exists or that the

government was obligated to take one. Because the photograph made available by the

government was comparable in evidentiary value to the physical items that Rodriguez

argues the government should have preserved, cf. United States v. Bingham, 653 F.3d

983, 994 (9th Cir. 2011), his claim fails.

4.    Rodriguez argues that the admission of statements by the non-testifying

confidential source (“CS”) violated the Confrontation Clause. We review for plain

error. United States v. Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011).

      Some of the statements to which Rodriguez refers were not statements by the

CS at all. Rodriguez argues that the CS was the ultimate source of statements by two

of the officers, but he cites no authority for the proposition that the Confrontation

Clause requires the cross-examination of not only testimonial declarants but anyone


                                             -6-
who may have made statements that contributed to those declarants’ knowledge. Other

statements were made by the CS but were admitted simply to establish the fact that

they had occurred, or to provide context for other statements, rather than to establish

the truth of the matter asserted. “The [Confrontation] Clause . . . does not bar the use

of testimonial statements for purposes other than establishing the truth of the matter

asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).

      A handful of the CS’s statements present a closer question. Although these

statements were never read into the record or otherwise brought to the jury’s attention

by either side, they were included in the lengthy written transcript of the recording

made from Officer Guerra’s body microphone, which was admitted as evidence in its

entirety. In one such statement, the CS speculates that “the owner of the work is the

one in the black truck.” In another, the CS says of Rodriguez: “Maybe he’s protecting

the work.” Had the government actually referred the jury to these particular

statements, they would clearly have been admitted for the truth of the matter asserted.

As it is, they appear to have been admitted simply by inadvertence, because they

happened to be included in a lengthy transcript only parts of which were meant to be

brought to the jury’s attention.

      We need not decide whether these statements should be considered to have been

admitted for the truth of the matter asserted, however, because the admission of the


                                          -7-
statements—even if error—was not plain error. “[A]n error is not plain unless it is

‘clear’ or ‘obvious,” United States v. Smith, 424 F.3d 992, 1002 (9th Cir. 2005), and

this was neither. The error must also have affected the defendant’s substantial rights,

which “in most cases . . . means that the error must have been prejudicial: It must have

affected the outcome of the district court proceedings.” United States v. Olano, 507

U.S. 725, 734 (1993). These statements were made by a source that the jury had little

reason to trust. They were hypotheses, not firm conclusions. The government did not

argue that Rodriguez owned the drugs. And although the jury had access to the full

transcript during its deliberations, there is no reason to think that the jury took upon

itself the task of examining portions that were never discussed at trial. The admission

of the statements, even if erroneous, therefore did not affect Rodriguez’s substantial

rights or “‘seriously affect[] the fairness, integrity, or public reputation of’” his trial.

Matus-Zayas, 655 F.3d at 1098.

5.     Rodriguez argues that because the CS was a witness, the government was

obligated under Brady v. Maryland, 373 U.S. 83 (1963), to disclose material that

would have allowed him to impeach the CS. Although Rodriguez did not present this

claim to the district court, he argues that we should review it de novo. Any claim

forfeited below is reviewed on appeal for plain error. See Olano, 507 U.S. at 731.




                                            -8-
      It may not be the case that Rodriguez’s claim fails merely because the CS did

not testify at trial. There is persuasive authority for the proposition that Brady and

related obligations extend to non-testifying witnesses. See United States v. Jackson,

345 F.3d 59, 70 (2d Cir. 2003); United States v. Flores, No. CR 08-0730 WHA, 2011

WL 1100137, at *1 (N.D. Cal. Mar. 24, 2011).

      We reject Rodriguez’s argument, however, for the same reason as we reject his

Confrontation Clause claim: even if a few of the CS’s statements may have been

admitted for the truth of the matter asserted, the admission of these statements did not

affect Rodriguez’s substantial rights, and if the admission of the statements did not

violate Rodriguez’s substantial rights, then the deprivation of his ability to impeach

the statements cannot have violated his substantial rights. The statements are highly

unlikely to have affected the outcome of the trial even if the jury fully credited them.

6.    Rodriguez challenges three instances of alleged prosecutorial misconduct

during the closing argument. We review for plain error. United States v. Sanchez, 659

F.3d 1252, 1256 (9th Cir. 2011).

      First, Rodriguez contends that the prosecutor advanced a theory unsupported

by the evidence. In particular, he challenges the prosecutor’s arguments that a) he

observed the McDonald’s meeting from the Buffalo Bill’s lot, b) he lied to the jury in

stating that he had watched the meeting from the Chevron, and c) he lied to the jury


                                          -9-
in denying, until confronted, that he had entered the Buffalo Bill’s lot. As to the first

two contentions, a prosecutor is free to “argue reasonable inferences based on the

evidence.” United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991). It is not true

that the prosecutor lacked evidence to support the argument that Rodriguez observed

the meeting from the Buffalo Bill’s lot, and thus that he lied about observing it from

the Chevron. As noted earlier, two officers testified that they saw Rodriguez’s truck

in the Buffalo Bill’s lot when they followed the other vehicles into the lot. As to the

third contention, the prosecutor did not say that Rodriguez denied entering the Buffalo

Bill’s lot, only that he did not admit to having done so until confronted. That

statement is an accurate representation of the record.

      Second, Rodriguez argues that the prosecutor vouched for Officer Guerra, citing

the prosecutor’s statement in rebuttal argument that the officer had “testified to [the

jury] exactly what happened.” In context, this was not vouching. Rodriguez’s counsel

had argued that a written report and recorded communications from the day of the

incident failed to mention what Guerra described as an intent stare from Rodriguez in

the Buffalo Bill’s lot. The prosecutor argued, in response, that because Guerra had

testified to that detail, its omission from the report and recordings should not be taken

to mean that it did not occur. The prosecutor hardly insinuated to the jury that he

personally knew what had happened in the parking lot.


                                          -10-
      Third, Rodriguez argues that the prosecutor mischaracterized evidence in three

ways. One concerns the prosecutor’s statements about the number of contacts between

Rodriguez’s phone and the two phones in the Explorer and about whether Rodriguez

had spoken to both occupants of the Explorer or only to one. To the extent that the

prosecutor misspoke about the number of contacts, his “misstatement has earmarks

of inadvertent mistake, not misconduct,” United States v. Carrillo, 16 F.3d 1046, 1050

(9th Cir. 1994), and at the least does not constitute plain error. The record does not

support Rodriguez’s contention that the prosecutor implied he had spoken to both

occupants of the Explorer. The second alleged misrepresentation is the prosecutor’s

claim that Rodriguez lied about whether he was traveling alone or with others to Las

Vegas. Contrary to Rodriguez’s argument, the jury could reasonably conclude from

his testimony that he lied, and the prosecutor was permitted to argue that inference.

The third alleged misrepresentation is a set of statements by the prosecutor concerning

the relevance to the case of the clothing and toiletries found in Rodriguez’s truck. We

do not believe that any of these statements constituted a misrepresentation.

      Fourth, Rodriguez argues that the prosecutor shifted the burden of proof by

arguing that the jury should employ “reason and common sense” in evaluating

Rodriguez’s testimony and theory of the case. Rodriguez acknowledges, however, that

the purpose of his “testimony was ‘to create reasonable doubt about an element of the


                                         -11-
offense in the mind of the jury.’” Appellant Br. 72. That acknowledgment shows why

the prosecutor did not commit misconduct: he was simply arguing to the jury that the

doubt sown by Rodriguez’s testimony was not reasonable doubt at all.

       We therefore reject each of Rodriguez’s claims of prosecutorial misconduct.

7.     Rodriguez argues in passing that his conviction should be reversed on the basis

of cumulative error. “Even if no error individually supports reversal, the cumulative

effect of numerous errors may support reversal.” United States v. Inzunza, 638 F.3d

1006, 1024 (9th Cir. 2011). The cumulative error analysis is “inapplicable” to claims

with respect to which “the district court did not err” at all, but we may consider errors

that do not individually rise to the level of plain error. United States v. Fernandez, 388

F.3d 1199, 1256-57 (9th Cir. 2004). We conclude, however, that even if the district

court committed one or more errors that did not rise to the level of plain error, these

errors taken together do not require reversal.

8.     Rodriguez raises three objections to his sentence—two of procedural error, one

of substantive unreasonableness. We review “‘the district court’s interpretation of the

Sentencing Guidelines de novo, the district court’s application of the Sentencing

Guidelines to the facts of a case for abuse of discretion, and the district court’s factual

findings for clear error.’” United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008).




                                           -12-
       First, Rodriguez argues that the district court failed to make the requisite factual

findings before imposing a two-level perjury enhancement. We agree. “Before it may

adjust defendant’s sentence for obstruction of justice, the district court must find that:

1) defendant gave false testimony; 2) the testimony was on a material matter; and 3)

defendant had ‘willful intent’ to provide false testimony.” United States v.

Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir. 2007) (per curiam). The government

concedes that the district court did not make such findings. The government contends

that the error is harmless because Rodriguez’s testimony must have been perjurious

given the nature of its inconsistency with the verdict. This argument misses the point.

“[A]s an appellate court, we are not in the business of making findings of fact,” Forest

Grove School Dist. v. T.A., 638 F.3d 1234, 1238 (9th Cir. 2011), and we held in

Jimenez-Ortega that under Supreme Court precedent, “the materiality of a false

statement is one of the factual predicates of an obstruction enhancement,” rather than

“a purely legal question . . . that the court of appeals c[an] decide in the first instance.”

472 F.3d at 1103. We therefore could not enter the requisite findings even if we were

convinced that they were appropriate, because the power to make the factual findings

required for a perjury enhancement lies within the exclusive province of the district

court. We must therefore remand for resentencing.




                                            -13-
       Second, Rodriguez argues that the district court failed to appreciate its authority

to vary from the Sentencing Guidelines or to consider the relevant sentencing factors

under 18 U.S.C. § 3553(a). Rodriguez is correct that the district court acted as if it

were bound by the Guidelines. The record provides no basis to conclude, however,

that the district court did not recognize its authority to vary from the Guidelines, rather

than simply preferring to adhere to them.

       We also reject Rodriguez’s argument that the district court failed to consider

the § 3553(a) factors. The court’s analysis of the factors was scant. Although the court

discussed several elements of Rodriguez’s background and characteristics, it did not

tie those facts in any specific way to the factors. Under our precedents, however, “‘a

checklist recitation of the section 3553(a) factors is neither necessary nor sufficient

for a sentence to be reasonable.’” United States v. Mix, 457 F.3d 906, 912-13 (9th Cir.

2006). The district court simply has to “explain [its sentence] sufficiently to permit

meaningful appellate review,” and the requisite degree of that explanation varies

“depending upon the complexity of the particular case” and “whether the sentence

chosen is inside or outside the Guidelines.” United States v. Carty, 520 F.3d 984, 992

(9th Cir. 2008) (en banc). “A within-Guidelines sentence ordinarily needs little

explanation.” Id. In light of the above, we cannot conclude that the explanation the

district court gave was insufficient.


                                           -14-
      Third, Rodriguez argues that his sentence is substantively unreasonable. We are

sympathetic to this argument. Rodriguez is seventy-one years old, and his last prior

offense was committed almost thirty years ago. The evidence in this case is far from

overwhelming, and at most, Rodriguez was conducting surveillance and providing

security; his vehicle contained no drugs. Under the mandatory minimum sentence of

fifteen years, Rodriguez would not be released until well into his eighties. One might

question whether a 248-month sentence is not “greater than necessary” to fulfill the

objectives set forth in § 3553(a). Nevertheless, we are reluctant to vacate as

substantively unreasonable sentences that fall within the Guidelines range, see Carty,

520 F.3d at 988, and will not do so here. The district court is free on remand, however,

to consider the § 3553(a) factors anew, and in view of the considerations mentioned

above, would be well within its discretion to do so.

      We AFFIRM the convictions, VACATE the sentence, and REMAND.




                                         -15-
