                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 15 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-10367

              Plaintiff - Appellee,               D.C. No. 1:11-cr-00128-HG-1

  v.
                                                  MEMORANDUM *
AMBROSIO SANTOS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Hawaii
                 Helen W. Gillmor, Senior District Judge, Presiding

                           Submitted February 11, 2013 **
                                Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

       Ambrosio Santos appeals from the 120-month sentence imposed following

his guilty-plea conviction for conspiracy to distribute and to possess with intent to

distribute in excess of 50 grams of methamphetamine, in violation of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      We reject Santos’s argument that he failed to receive a fair evidentiary

hearing in violation of his due process rights. The record shows the district court

did not rely on unreliable hearsay to find Santos ineligible for safety valve relief.

And contrary to Santos’s allegation, there was no improper prosecutorial vouching

in this case, where the alleged instances occurred before a sentencing judge rather

than a jury. See E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994)

(“[I]n a bench trial, the risk that a verdict will be affected unfairly and substantially

by the admission of irrelevant evidence is far less than in a jury trial.”). Finally,

the record does not provide support for Santos’s allegation that the prosecution

knowingly used perjured testimony at the evidentiary hearing.

      Santos also contends that the district court erred in its application of the

Sentencing Guideline range by attributing to him the drugs found in his

co-defendant’s suitcase. Contrary to Santos’s argument, the district court did not

apply the incorrect standard of proof, nor did the court apply an “assumption of

risk” analysis in determining drug quantity. United States v. Gonzalez, 528 F.3d

1207, 1214 (9th Cir. 2008) (“The district court at sentencing must find drug

quantities by a preponderance of the evidence through sufficiently reliable


                                            2
information.”). Because the quantity of drugs in Santos’s co-defendant’s suitcase

was reasonably foreseeable and “within the scope of the criminal activity that he

jointly undertook,” the district court did not err in holding him accountable for it.

U.S.S.G. § 1B1.3(a)(1)(B) cmt. n.2. It was not necessary to establish the

foreseeability of the quantity of drugs beyond a reasonable doubt because the

quantity is not a fact “necessary to support a sentence exceeding the maximum

authorized by the facts established by [Santos’s] plea.” United States v. Booker,

543 U.S. 220, 244 (2005).

      Based on the foregoing, Santos’s claim of cumulative error also fails. See

United States v. Gutierrez, 995 F.2d 169, 173 (9th Cir. 1993) (no cumulative error

where defendant failed to identify single error).

      AFFIRMED.




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