                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 07 2011

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

UNITED STATES OF AMERICA,                        No. 09-50275

              Plaintiff - Appellee,              D.C. No. 2:02-cr-00531-RSWL-1

  v.
                                                 MEMORANDUM*
CENOBIO HUMBERTO HERRERA, Sr.,
AKA Bert Herrera, AKA Cenobio
Humberto Herrera, AKA Cenobio
Humberto Lanz,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Central District of California
                Ronald S.W. Lew, Senior District Judge, Presiding

                      Argued and Submitted January 10, 2011
                               Pasadena, California

Before: O’SCANNLAIN, W. FLETCHER, and CLIFTON, Circuit Judges.

       A jury convicted Cenobio Herrera of a number of crimes arising from an

extensive conspiracy to purchase pseudoephedrine at wholesale, to sell it for use in

manufacturing methamphetamine, and to launder the immense profits. The district


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court sentenced him to 360 months in prison, consistent with the Federal

Sentencing Guidelines. Herrera appealed his convictions on a number of grounds,

each of which we rejected. We stated that:

      [W]e affirm the conviction [sic]. However, because the district court
      sentenced Herrera under the mandatory sentencing guidelines regime
      that prevailed prior to the Supreme Court’s ruling in United States v.
      Booker, 543 U.S. 220 (2005), and since we cannot reliably determine
      whether the sentence imposed would have been materially different
      had the district court known that the guidelines were advisory, we
      order a limited remand under [United States v. Ameline, 409 F.3d
      1073, 1084–85 (9th Cir. 2005)].

United States v. Herrera, 219 Fed. Appx. 686, 689 (9th Cir. 2007) (“Herrera I”).

      On remand, the district court determined that it would have given Herrera

the same sentence even if it had known the Guidelines were advisory. In this

timely appeal from that sentencing determination, Herrera seeks to reopen his

challenge to the convictions which were affirmed in Herrera I. This he cannot do.

                                         I

      We have held that “challenges to a defendant’s conviction may be reviewed

on appeal from an Ameline remand, where . . . the challenge was raised in an

earlier appeal.” United States v. Van Alstyne, 584 F.3d 803, 812 (9th Cir. 2009).

Two of the challenges that Herrera now raises to his convictions were not raised on

his initial appeal. Accordingly, he cannot raise them now.



                                         2
      In his first appeal, Herrera did challenge the sufficiency of the evidence to

convict him of conspiring to aid and to abet the manufacture of over 500 grams of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). But we rejected this

claim, calling the evidence supporting Herrera’s section 841(a)(1) conspiracy

conviction “overwhelming.” Herrera, 219 Fed. Appx. at 688. The law of the case

doctrine provides that “one panel of an appellate court will not as a general rule

reconsider questions which another panel has decided on a prior appeal in the same

case.” United States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999) (internal

quotation marks and citations omitted). However, a court may depart from the law

of the case doctrine if there has been “an intervening change in the law.” Id.

      Herrera argues that there have been two relevant intervening changes in the

law since his initial appeal was decided. First, he apparently believes that United

States v. Santos, 553 U.S. 507 (2008), stands for a general “anti-merger” principle

that goes something like this: where a defendant cannot violate a specific statute

without also violating a more general statute (and where the more general statute

provides for stricter punishment), the government is barred from prosecuting him

under the more general statute. Applied here, Herrera claims that anyone who

conspires to posses pseudoephedrine “knowing, or having reasonable cause to

believe that it will be used to manufacture” methamphetamine, in violation of 21


                                          3
U.S.C. § 841(c), will necessarily be guilty of conspiring to aid and abet the

manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Because

section 841(c) is more specific and more lenient than section 841(a)(1), Herrera

contends that one guilty of the former should not be chargeable with the latter.

      But Santos does not stand for such a broad, free-floating “anti-merger” rule.

For starters, Santos involved money laundering and illegal gambling; it had

nothing to do with the drug statutes at the heart of Herrera’s claim. The four

justices in the Santos plurality only mentioned the “merger problem” in response

to the government’s argument from congressional intent. See id. at 515 (plurality

opinion). Instead, the crux of the plurality’s argument was that the term

“proceeds,” as used in the money laundering statute, is ambiguous and should

therefore be construed in Santos’s favor. See id. at 514. Likewise, Justice Stevens’

concurrence considered the merger problem only because the statute was

ambiguous. See id. at 526–27 (Stevens, J., concurring).

                                         II

      Second, Herrera claims that the standard of review applicable to his

sufficiency of evidence claim has changed since his initial appeal. At the end of

the government’s case, Herrera moved for acquittal under Federal Rule of Criminal

Procedure 29. However, he did not renew this motion at close of all the evidence.


                                          4
On Herrera’s first appeal, we reviewed his sufficiency claim for plain error, as

required by United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200–01 (9th Cir.

2000). We have since recognized a futility exception to the Alvarez-Valenzuela

rule. See United States v. Esquivel-Ortega, 484 F.3d 1221, 1224–25 (9th Cir.

2007). In Esquivel-Ortega, the defendant made a Rule 29 motion “only a few

moments” before the close of evidence, but failed to renew the motion after two,

largely cumulative, pieces of evidence were admitted. On appeal, we applied de

novo review to his sufficiency claim because we found that “it would have been

futile for Esquivel to renew his motion following the offering of those two pieces

of evidence.” Id. at 1225. Herrera has not established that the Esquivel-Ortega

exception applies here. At any rate, it is clear that any change in the standard of

review would not have changed the result of Herrera’s prior appeal. See Herrera,

219 Fed. Appx. at 688 (concluding that the evidence supporting Herrera’s section

841(a)(1) conspiracy conviction was “overwhelming”).

      As there has been no intervening change in the law that is relevant to

Herrera’s challenge to his section 841(a)(1) conspiracy conviction, it is precluded

by the law of the case.




                                           5
                                          III

      Because Herrera does not challenge his sentence in this appeal, and cannot

re-challenge his convictions, the decision of the district court is

      AFFIRMED.




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