                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 19 2013

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

UNITED STATES OF AMERICA,                        No. 12-10426

              Plaintiff - Appellee,              D.C. No. 3:10 CR-0109- RCJ

  v.
                                                 MEMORANDUM*
JOSE ROJAS-GUZMAN, AKA Angel,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10427

              Plaintiff - Appellee,              D.C. No. 3:11 CR-0088- RCJ

  v.

JOSE ROJAS-GUZMAN, AKA Angel,
         Defendant - Appellant.


                  Appeals from the United States District Court
                            for the District of Nevada
                Robert Clive Jones, Chief District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted June 11, 2013**
                              San Francisco, California

Before:         TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior
                District Judge.***

      Jose Rojas-Guzman (“Rojas”) appeals his convictions for conspiracy to

possess with intent to distribute and to distribute methamphetamine, distribution of

methamphetamine, and possession with intent to distribute methamphetamine. His

sole contention on appeal is that the verdict is not supported by sufficient

evidence.1 To prevail, he must show that no “rational trier of fact could have found

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

Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (per curiam) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). Because Rojas has not made that showing,

we affirm.

      “The elements of drug conspiracy under [21 U.S.C. § 846] are: (1) an

agreement to accomplish an illegal objective, and (2) the intent to commit the

          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
          ***
             The Honorable William H. Stafford, Jr., Senior United States District
Judge for the Northern District of Florida, sitting by designation.
      1
             Rojas has also appealed a separate conviction for illegal re-entry,
which was consolidated with his appeal of the drug conviction. Because Rojas
does not raise any claims of error with respect to the re-entry conviction, all such
claims are waived; thus, that conviction is affirmed.

                                         -2-
underlying offense.” United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th

Cir. 2001). The government “can prove the existence of a conspiracy through

circumstantial evidence that defendants acted together in pursuit of a common

illegal goal.” United States v. Bishop, 1 F.3d 910, 911 (9th Cir. 1993). Moreover,

“a co-conspirator is vicariously liable for reasonably foreseeable substantive

crimes committed by a co-conspirator in furtherance of the conspiracy.” United

States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir. 1997) (per curiam) (citing

Pinkerton v. United States, 328 U.S. 640, 647-48 (1946)).

       The government presented numerous recordings of phone calls between

Rojas and two individuals, during which Rojas instructed the other men about

specific customers and pricing for methamphetamine. There was also evidence

that the other two men had – in accordance with the instructions from Rojas – sold

methamphetamine to a confidential informant. Finally, there was evidence – in the

form of telephone recordings and visual surveillance – that Rojas told the two men

to pick up additional methamphetamine at his home and that the men followed

through on that instruction.

      This evidence was sufficient to support the conspiracy count as well as the

two substantive counts based on Pinkerton liability. Alternatively, Rojas’s verbal

assistance and instructions regarding the deals were sufficient to uphold the


                                         -3-
substantive counts based on an aiding and abetting theory. See United States v.

Savinovich, 845 F.2d 834, 838 (9th Cir. 1988) (holding that an aider and abettor is

liable for drug distribution if “the defendant associate[d] with the criminal venture,

participate[d] in it, and [sought] by actions to make it succeed”).

      The judgments of conviction are AFFIRMED.




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