                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 21 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10165

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00039-FRZ-
                                                 GEE-8
  v.

VENANCIO CASAREZ-SANCHEZ,                        MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Frank R. Zapata, Senior District Judge, Presiding

                     Argued and Submitted November 5, 2012
                            San Francisco, California

Before: SACK,** GOULD, and M. SMITH, Circuit Judges.

       Defendant Venancio Casarez-Sanchez appeals his conviction of conspiracy

to possess with intent to distribute 1,000 kilograms or more of marijuana and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Robert D. Sack, Senior Circuit Judge for the United
States Court of Appeals for the Second Circuit, sitting by designation.
possession with intent to distribute 1,000 kilograms or more of marijuana. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

      Defendant contends that the district court abused its discretion by admitting

statements of Defendant’s co-conspirators made after Defendant’s arrest and

release. The district court did not abuse its discretion because “[a]n unarrested

co-conspirator still operating in furtherance of the conspiracy may say and do

things which may be introduced against the arrested one if the conspiracy is still in

operation.” United States v. Wentz, 456 F.2d 634, 637 (9th Cir. 1972); see also

Fed. R. Evid. 801(d)(2)(E).

      Here, the government proved a single overarching conspiracy to import

marijuana to Tucson and Phoenix using tractor trailers, and this conspiracy

continued after Defendant’s arrest. A conspiracy is presumed to continue unless

there is affirmative evidence of abandonment or withdrawal. United States v.

Wilbur, 674 F.3d 1160, 1176 (9th Cir. 2012). Defendant did not prove that he or

his co-conspirators abandoned or withdrew from the drug-trafficking conspiracy.

Merely asserting that co-conspirators lacked knowledge of the April 14 drug load

does not necessarily prove that multiple, separate conspiracies existed. See United

States v. Taren–Palma, 997 F.2d 525, 530 (9th Cir. 1993), overruled on other

grounds by United States v. Shabani, 513 U.S. 10, 11 (1994).


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      Defendant also asserts that there was insufficient evidence to establish the

conspiracy alleged in the indictment. When viewed in the light most favorable to

the government, the evidence was adequate to allow a rational trier of fact to find

the essential elements of the crime beyond a reasonable doubt. See United States v.

Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (citing Jackson v. Virginia,

443 U.S. 319 (1979)). The government proved the single drug conspiracy to

import marijuana to the Southwest as charged.

      Finally, Defendant contends that there was a fatal variance between the

conspiracy charged in the indictment and the evidence at trial. We review this

claim de novo. United States v. Doss, 630 F.3d 1181, 1191 (9th Cir. 2011). For

the reasons articulated above, the evidence presented at trial is consistent with a

single conspiracy to possess with intent to distribute 1,000 or more kilograms of

marijuana.

      AFFIRMED.




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