                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 23 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.     17-30166

                Plaintiff-Appellee,             D.C. No.
                                                1:16-cr-02047-SMJ-1
 v.

GERARDO MADEROS LORETO,                         MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Eastern District of Washington
                 Salvador Mendoza, Jr., District Judge, Presiding

                       Argued and Submitted March 5, 2019
                               Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,** District Judge.

      Gerardo Loreto appeals his conviction and sentence for conspiring to

possess and attempting to possess with the intent to distribute 50 grams or more of

methamphetamine. We have jurisdiction under 28 U.S.C. § 1291. We affirm in

part and reverse in part and remand for resentencing.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
      1. Sufficiency of the Evidence

      We employ “a two-step inquiry for considering a challenge to a conviction

based on sufficiency of the evidence.” United States v. Nevils, 598 F.3d 1158,

1164 (9th Cir. 2010) (en banc). “First, [we] must consider the evidence presented

at trial in the light most favorable to the prosecution.” Id. (citation omitted).

“Second, after viewing the evidence in the light most favorable to the prosecution,

[we] must determine whether this evidence, so viewed, is adequate to allow any

rational trier of fact [to find] the essential elements of the crime beyond a

reasonable doubt.” Id. (quotation omitted, emphasis and second alteration in

original). Although we review de novo a claim of insufficient evidence, our

“evaluation remains deferential and accords respect to the jury’s role as weigher of

the evidence.” United States v. Moe, 781 F.3d 1120, 1124 (9th Cir. 2015)

(quotation omitted).

      Loreto argues the evidence was insufficient for the jury to convict him of

conspiracy to possess and attempt to possess with the intent to distribute

methamphetamine. Viewing the evidence in the light most favorable to the

prosecution, the government presented sufficient evidence, including the testimony

of a government informant, transcripts of telephone calls made by Loreto while he

was incarcerated, and notes allegedly written by Loreto, to enable a rational trier of

fact to find the essential elements of each charge beyond a reasonable doubt.


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Although much of this evidence comes from a government informant who hoped

his cooperation would provide him some benefit in his own criminal case, his

testimony was not incredible or insubstantial on its face. Moreover, the jury was

instructed that it should view the informant’s testimony with caution. Under the

circumstances, we must defer to the jury’s credibility determination and affirm the

convictions. See United States v. Leung, 35 F.3d 1402, 1405 (9th Cir. 1994);

United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986).

      2. Multiplicitous Convictions

      Loreto also argues that his convictions for conspiracy to possess with intent

to distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841 and

attempt to possess with intent to distribute methamphetamine in violation of 21

U.S.C. § 841 are multiplicitous. Loreto, however, was not convicted and

sentenced under a multiplicitous indictment. See United States v. Felix, 503 U.S.

378, 389 (1992) (“[A] substantive crime and a conspiracy to commit that crime are

not the ‘same offence’ for double jeopardy purposes.”).

      3. Drug Quantity Finding

      Finally, Loreto argues that the jury’s drug quantity finding is not supported

by the evidence. Notably, the police did not seize any methamphetamine in their

investigation of Loreto. To prove the quantity alleged in the Indictment—50

grams of methamphetamine— the government presented evidence that Loreto


                                         3
offered “pounds” of methamphetamine to the government informant in exchange

for committing a murder; evidence that Loreto directed his cousin to obtain a

“pound” of methamphetamine; testimony that Loreto usually dealt high quality

methamphetamine; testimony that the price for a pound of methamphetamine at the

time of Loreto’s arrest was about $5,000; and testimony that a pound of

methamphetamine is equal to approximately 450 grams, but that methamphetamine

“[c]ould be” cut. The government did not, however, introduce any evidence of the

purity level of the methamphetamine connected to Loreto. Viewing the evidence

in the light most favorable to the government, no reasonable fact finder could have

determined beyond a reasonable doubt that Loreto conspired to and attempted to

possess more than 50 grams of methamphetamine. See United States v. Lemus,

847 F.3d 1016, 1022–24 (9th Cir. 2016) (vacating the jury’s 50 gram finding

because the government only offered an FBI agent’s testimony concerning the

range of purity of methamphetamine previously purchased in the area by the FBI).

      “Because the drug quantity finding fails based on insufficient evidence, the

government may not retry that issue, and instead must seek resentencing based

solely on the basic possession conviction, i.e., pursuant to the statutory range set

forth in 21 U.S.C. § 841(b)(1)(C).” Id. at 1023; see also Burks v. United States,

437 U.S. 1, 11 (1978). We therefore vacate the 50-gram finding and the sentence,

and remand for resentencing under 21 U.S.C § 841(b)(1)(C).


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AFFIRMED in part, VACATED in part, and REMANDED




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