                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 14 2011

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

UNITED STATES OF AMERICA,                        No. 10-50097

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01079-DSF-34

  v.
                                                 MEMORANDUM*
DANIEL MARTIN MACIEL, Jr., AKA
Pony, AKA Seal HH,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50098

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01079-DSF-16

  v.

CARLOS RODRIGUEZ, AKA Face,
AKA Seal P,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50100

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01079-DSF-14


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

VICTOR HERRERA, AKA German,
AKA Seal N,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                     Argued and Submitted November 8, 2011
                              Pasadena, California

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

       Appellants Carlos Rodriguez, Daniel Martin Maciel, Jr., and Victor Herrera

each appeal their respective convictions for conspiracy to possess with intent to

distribute at least 500 grams of a mixture or substance containing a detectable

amount of methamphetamine, or at least 50 grams of actual methamphetamine, in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii). Because the history and facts

of these cases are familiar to the Parties, we need not fully recount them here. We

note only that the Government arrested and charged each Defendant as a result of a

three-year investigation into the Los Angles-based Florencia 13 (“F13”) street

gang’s drug trafficking and racketeering activities. The evidence against the

Appellants consisted almost entirely of intercepted phone calls on which they can

                                          2
each be heard speaking with three mid-level F13 drug dealers: Alberto Hernandez,

Jesse Vasquez, and Arturo Cruz.

I.    Sufficiency of the Evidence Claims

       In evaluating a challenge to the sufficiency of the evidence, we view the

evidence in the light most favorable to the prosecution, and must affirm the jury’s

verdict so long as any rational trier of fact could conclude that the elements of the

crime have been proven beyond a reasonable doubt. United States v. Nevils, 598

F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)).

      A.     Herrera and Maciel’s Conspiracy Conviction Claims

      We find that the Government proved the existence of the broad drug

distribution conspiracy charged in the indictment. Accordingly, the definitive

issue before us is whether sufficient evidence connects these Defendants, even

slightly, to that conspiracy. United States v. Corona-Verbera, 509 F.3d 1105,

1117 (9th Cir. 2007).

             1.     Sufficient evidence supports Herrera’s conspiracy
                    conviction

      In arguing that his conviction should be reversed, Herrera relies primarily on

United States v. Lennick, which held that “proof . . . a defendant sold drugs to other



                                          3
individuals,” even in large quantities, “does not prove the existence of a

conspiracy.” 18 F.3d 814, 819 (9th Cir. 1994) (emphasis added). Herrera’s

reliance on Lennick is misplaced because the existence of the conspiracy is not at

issue, but rather his connection to it. Moreover, this case is distinguishable, as the

evidence shows that Herrera had more than a buyer-seller relationship with

Vasquez. Herrera acted as a facilitator who, at Vasquez’s request, sought out

wholesale suppliers of methamphetamine and, after finding one, agreed to set up a

deal whereby Vasquez could purchase at least a pound of the drug.1 He also

proposed going into business with Vasquez, suggesting they jointly invest in ten

pounds of methamphetamine and sell it after the price had risen. In so doing,

Herrera clearly participated in and furthered the objects of the drug distribution

conspiracy. See United States v. Antonakeas, 255 F.3d 714, 723–24 (9th Cir.

2001).

          That Herrera participated knowingly is evidenced by the large quantity of

drugs discussed, which alone is sufficient to prove Herrera’s knowledge of the



      1
       We reject Herrera’s argument that there was insufficient evidence to prove
he and Vasquez were discussing methamphetamine. Although Herrera’s drug
expert testified to the contrary, the jury was entitled to accept the Government
expert’s competing and well-reasoned conclusion that the drug in question was
methamphetamine. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95
F.3d 1422, 1431 (9th Cir. 1996).
                                           4
broader conspiracy. Furthermore, the intercepted calls evidence a familiarity

between Herrera and Vasquez that, when coupled with the quantity of drugs

discussed and the investment proposal, supports an inference that Herrera was

aware of Vasquez’s status as a prolific drug dealer. This knowledge, along with

Vasquez’s mention to Herrera of other co-conspirators, is sufficient to support a

finding that Herrera knowingly involved himself with the drug conspiracy of which

Vasquez was a part. See United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir.

1977).

             2.    Sufficient evidence supports Maciel’s conspiracy conviction

      As an initial matter, there was sufficient evidence to prove that Maciel was

the person referred to as “Pony” on the intercepted phone calls introduced against

him. Maciel admitted going by Pony, the phone used by Pony was registered to

Maciel at his home address, and the jury considered a voice exemplar. See United

States v. Scully, 546 F.2d 255, 270 (9th Cir. 1976) vacated on other grounds by

United States v. Cabral, 430 U.S. 902 (1977).

      As for the conspiracy conviction itself, Maciel also improperly relies on

Lennick; the pertinent issue is not whether a conspiracy existed, but whether the

evidence slightly connects Maciel to it. Turning to that question, the evidence

shows that Maciel took numerous actions that furthered the objectives of the


                                         5
conspiracy. At Vasquez’s behest, Maciel checked with a drug supplier concerning

the price of methamphetamine and then agreed to facilitate a purchase on

Vasquez’s behalf. He also offered to put Vasquez in touch with a supplier of crack

cocaine. Like with Herrera, the quantity of methamphetamine involved supports a

finding that Maciel had reason to know of his involvement with a conspiracy.

Furthermore, the evidence shows that Maciel also knew that Vasquez was not

working alone, as Vasquez made reference to another drug supplier and Maciel

was attempting to connect Vasquez with a crack-cocaine dealer he knew. When

viewed in tandem with the quantities of narcotics discussed, this evidence supports

an inference that Maciel knew of the broader conspiracy and that his actions

furthered its objectives. See Kearney, 560 F.2d at 1362.

      B.     Drug Quantity Determinations

      In a drug conspiracy, “a conspirator is to be judged on the quantity of drugs

that he reasonably foresaw or which fell within the scope of his particular

agreement with the conspirator.” United States v. Reed, 575 F.3d 900, 925 (9th Cir.

2009). “The scope of the jointly undertaken activity is not necessarily the same as

the scope of the entire conspiracy.” United States v. Riley, 335 F.3d 919, 928 (9th

Cir. 2003) (internal quotation marks omitted).




                                          6
               1.    The jury’s drug quantity finding as to Rodriguez is not
                     supported by sufficient evidence

      The jury held that Rodriguez’s participation in the conspiracy involved at

least 50 grams of pure methamphetamine or 500 grams of a mixture or substance

containing a detectable amount of methamphetamine (“50/500”).2 Viewing the

evidence in the light most favorable to the Government, we find that this verdict is

not supported by sufficient evidence. Rodriguez agreed to purchase quarter- and

half-ounce quantities of methamphetamine on seven different occasions and was

rebuffed in his attempts to purchase unspecified amounts of methamphetamine on

six others.3 The quantity of drugs, therefore, that fell within the scope of

Rodriguez’s agreement falls short of the 500-gram mixed-methamphetamine

threshold, and we can devise no method of extrapolation that the jury may have

reasonably utilized to reach that amount. See United States v. Scheele, 231 F.3d

492, 498 (9th Cir. 2000) (approving estimation but urging caution in its use).

Furthermore, because Rodriguez did not stipulate to the purity of the


      2
        The amount of “actual” or “pure” methamphetamine in a methamphetamine
mixture is calculated as the percentage of the methamphetamine mixture that is
pure. United States v. Lopes-Montes, 165 F.3d 730, 731 (9th Cir. 1999). For
example, “[A] mixture weighing 10 grams containing [methamphetamine] at 50%
purity contains 5 grams of [methamphetamine] (actual [or pure]).” Id. (citing
U.S.S.G. § 2D1.1(c) n.B).
      3
          An ounce weighs approximately 28.35 grams.
                                           7
methamphetamine found at Vasquez, Cruz, and Hernandez’s stash houses, the jury

lacked comparator evidence from which it could estimate the purity of the

methamphetamine that Rodriguez agreed to purchase and distribute. Cf.

Lopes-Montes, 165 F.3d at 732 (approving estimation of drug purity based on

purity of seized drugs). Consequently, there was insufficient evidence for the jury

to conclude that the scope of Rodriguez’s agreement exceeded the 50-gram pure-

methamphetamine threshold.

      Additionally, a defendant is only liable for the conduct of another if that

conduct “was reasonably foreseeable and furthered jointly undertaken criminal

activity.” United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004). The

evidence shows that the scope of Rodriguez’s agreements with co-conspirators

Vasquez, Cruz, and Hernandez extended only to street-level distribution of

methamphetamine. Accordingly, the methamphetamine found at their stash houses

was not reasonably foreseeable to Rodriguez in connection with that jointly

undertaken criminal activity. See U.S.S.G. § 1B1.3.cmt. n.2(c)(7). In other words,

because Rodriguez agreed only to distribute methamphetamine for Vasquez, Cruz,

and Hernandez, he is not responsible for their supplies of the drug.

      Accordingly, we hold that there is insufficient evidence to support the jury’s

finding that Rodriguez’s conspiracy involved at least 50 grams of pure


                                          8
methamphetamine or 500 grams of a mixture or substance containing a detectable

amount of methamphetamine. We therefore reverse and remand for resentencing

in accordance with this holding.

             2.    The jury’s drug quantity finding as to Herrera is supported
                   by sufficient evidence

      The evidence shows that Herrera agreed to supply Vasquez with at least a

pound of methamphetamine, which weighs approximately 453 grams. Assuming

the purity of this methamphetamine was commensurate with the lowest purity

methamphetamine seized from Vasquez’s stash house—12 percent pure— the 50-

gram threshold is satisfied, as it would yield 54.36 grams of pure

methamphetamine. See Lopes-Montes, 165 F.3d at 732. Alternatively, the 500

gram threshold is exceeded by adding the amount of methamphetamine found at

Vasquez’s stash houses—184.3 grams—to the 453 grams to which Herrera agreed.

The stash house methamphetamine was reasonably foreseeable to Herrera because

the jointly undertaken criminal activity he engaged in with Vasquez encompassed

supplying Vasquez with drugs for further distribution. See United States v. Flores

Rosales, 516 F.3d 749, 755 (9th Cir. 2008).

             3.    The jury’s drug quantity finding as to Maciel is supported
                   by sufficient evidence




                                         9
       We also find that the jury’s 50/500 drug quantity finding as to Maciel is

supported by sufficient evidence. Viewing the evidence in the light most favorable

to the Government, Maciel agreed to facilitate the purchase of a pound of

methamphetamine. As in Herrera’s case, even if the jury assumed that this

methamphetamine was only 12 percent pure, that still yields 54.36 grams of pure

methamphetamine. See Lopes-Montes, 165 F.3d at 732. Furthermore, for the

same reasons as with Herrera, the methamphetamine found at Vasquez’s stash

houses is attributable to Maciel under a foreseeablity theory, and the 500 gram

threshold is exceeded when the stash house methamphetamine is added to the 453

grams whose purchase Maciel agreed to facilitate. See Flores Rosales, 516 F.3d at

755.

II.    Non-Sufficiency-of-the-Evidence Claims

       A.    Rodriguez

             1.     The district court did not err in denying Rodriguez’s
                    motion to dismiss the 21 U.S.C. § 851 information

       Rodriguez argues that the Government engaged in vindictive prosecution by

filing a 21 U.S.C. § 851 information only after he elected to exercise his

constitutional right to a trial. We reject this claim. During plea negotiations, the

prosecutor made veiled threats of filing an § 851 information, and Rodriguez was



                                          10
aware of this possibility. A prosecutor’s decision to follow through on a plea-

negotiation threat to file additional charges does not raise a presumption of

vindictive prosecution. United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir.

1996). Furthermore, because Rodriguez was aware of the threat, “[t]his is not a

situation, therefore, where the prosecutor without notice brought an additional and

more serious charge after plea negotiations relating only to the original indictment

had ended with the defendant's insistence on pleading not guilty.” Bordenkircher

v. Hayes, 434 U.S. 357, 360 (1978) (emphasis added).

             2.     The district court did not plainly err by failing to give
                    Rodriguez a personal-use instruction

      Rodriguez argues that the district court erred by failing to instruct the jury

that, in calculating the quantity of drugs for which Rodriguez was responsible, it

could deduct the amount it found Rodriguez agreed to purchase for personal use.

Because Rodriguez did not request this instruction at trial, we review the district

court’s alleged failure to give the instruction for plain error, and we find none.

United States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006). We have held that a

personal-use deduction is permitted for a possession with intent to distribute

charge. United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1496 (9th Cir. 1994)

overruled on other grounds by United States v. Montero-Camargo, 208 F.3d 1122,



                                          11
1331–32 (9th Cir. 2000). We have never recognized that this would be appropriate

in the conspiracy context. Most other circuits that have considered the issue have

held that a personal-use deduction is unwarranted, see, e.g., United States v.

Iglesias, 535 F.3d 150, 160 (3d Cir. 2008), including some which have approved a

version of the Rodriguez-Sanchez rule. See, e.g., United States v. Wyss, 147 F.3d

631, 632 (7th Cir. 1998). Given the absence of controlling authority on this issue,

the lack of an inherent conflict with Rodriguez-Sanchez, and the law in the other

circuits, it was not plain error for the district court to forego a personal-use

instruction. See United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).

             3.     The district court did not err in applying a recidivist
                    penalty to Rodriguez during sentencing

        Under 21 U.S.C. § 841(b)(1)(A), a prior drug conviction qualifies a

defendant for a recidivist penalty so long as the prior conviction became final

before the defendant committed the instant offense. Rodriguez argues that the

district court improperly imposed a recidivist penalty based on a January 2006

drug conviction because there was insufficient evidence that Rodriguez’s

participation in the conspiracy continued past December 17, 2005, the date

Rodriguez’s voice last appeared on an intercepted phone call. Because Rodriguez




                                           12
did not raise this claim below, we review for plain error. United States v. Ross,

511 F.3d 1233, 1235 (9th Cir. 2008).

      Conspiracy is a “continuing offense,” meaning that a defendant’s connection

with a conspiracy “is presumed to continue until there is affirmative evidence of

abandonment, withdrawal, disavowal or defeat of the object of the conspiracy.”

United States v. Castro, 972 F.2d 1107, 1112 (9th Cir. 1992) overruled on other

grounds in United States v. Jimenez Recio, 537 U.S. 270 (2003). There is nothing

in the record demonstrating Rodriguez’s affirmative withdrawal from the

conspiracy, which the indictment alleges extended until September 2007.

Accordingly, the district court did not plainly err in using Rodriguez’s January

2006 conviction to enhance his sentence.

      B.     The sentence imposed on Herrera by the district court
             is not substantively unreasonable

      Herrera argues that the 286-month sentence imposed by the district court is

substantively unreasonable. Contrary to Herrera’s arguments, under Kimbrough v.

United States, 552 U.S. 85 (2007), the district court was not required to mitigate

the harshness of the career offender provisions because they are not based on

empirical research. Id. at 109. Additionally, this case is easily distinguishable

from United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), as the



                                          13
district court considered the Herrera-specific facts warranting a departure,

explaining that it considered his “positive traits” and had been persuaded

somewhat by the arguments made in his briefs. See id. at 1056. This

consideration is reflected in the district court’s 76-month departure below the

Guideline minimum. The district court, therefore, did not abuse its discretion in

sentencing Herrera. See Gall v. United States, 552 U.S. 38, 51 (2007).

      C.     The district court did not err in dismissing Maciel’s
             motion to suppress the wiretap authorized for Target Telephone
             #10

       The determinative question in our review of a district court’s denial of a

motion to suppress evidence obtained from a wiretap is whether, looking at the

four-corners of the wiretap affidavit, there was a substantial basis to support the

issuing judge’s probable cause determination. United States v. Meling, 47 F.3d

1546, 1552 (9th Cir. 1995). Here, the affidavit detailed a wide-ranging drug

operation and pointed to specific facts suggesting that the owner of Target

Telephone #10, Marisol Garcia, was involved. Intercepts from a wiretap of Cruz’s

phone showed that Garcia discussed narcotics proceeds and used coded language

with Cruz on one, if not two, occasions, and the affiant found that these calls

evidenced Garcia’s involvement in her husband Vasquez’s drug dealing operation.

See United States v. Michaelian, 803 F.2d 1042, 1045 (9th Cir. 1986). Toll


                                          14
records also showed that Target Telephone #10 had received phone calls from

other persons with suspected connections to the F13 gang’s drug trade. Finally, the

facts in the affidavit were not stale. United States v. Leasure, 319 F.3d 1092, 1099

(9th Cir. 2003). Accordingly, we find the district judge had a substantial basis for

his probable cause determination. Meling, 47 F.3d at 1552.

      The jury’s drug-quantity finding as to Rodriguez is reversed and the

case is remanded for resentencing in light of this opinion. All other claims are

affirmed.




                                         15
