                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JUN 07 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 12-50164

              Plaintiff-Appellee,                D.C. No. 2:09-cr-01131-JHN-6

  v.
                                                 MEMORANDUM *
NICHOLAS JAMES DINARDO,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                  Jacqueline H. Nguyen, District Judge, Presiding

                        Argued and Submitted May 7, 2013
                              Pasadena, California

Before: PAEZ and IKUTA, Circuit Judges, and EZRA, District Judge.**

       Nicholas James Dinardo appeals his conviction and 121-month sentence for

conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.


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

       **
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.



                                         -1-
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate Dinardo’s

conviction.

      Dinardo moved for a judgment of acquittal at the close of the government’s

case but did not renew his motion at the close of the evidence. We review the

denial of a non-renewed motion for acquittal for plain error. United States v. Cruz,

554 F.3d 840, 844 (9th Cir. 2009). However, “plain-error review of a

sufficiency-of-the-evidence claim is only ‘theoretically more stringent’ than the

standard for a preserved claim,” which asks whether, viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could find the

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

Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (quoting Cruz, 554 F.3d at 844).

      The government based its case on evidence that Dinardo agreed to purchase

a large quantity of drugs and that his suppliers knew he planned to redistribute the

drugs in Canada. To establish a drug-distribution conspiracy, however, the

government had to show more than that Dinardo’s suppliers knew he planned to

resell the drugs; it had to show that Dinardo and his suppliers had agreed that

Dinardo would do so. See United States v. Ramirez, No. 11-50346, 2013 WL

1789529, at *4 (9th Cir. Apr. 29, 2013) (citing United States v. Lennick, 18 F.3d

814, 818 (9th Cir. 1994)). Express agreement is not required; an agreement may



                                          -2-
be inferred from conduct. See United States v. Hegwood, 977 F.2d 492, 497 (9th

Cir. 1992). “In the end, what we are looking for is evidence of a prolonged and

actively pursued course of sales coupled with the seller’s knowledge of and a

shared stake in the buyer’s illegal venture.” Ramirez, 2013 WL 1789529, at *5

(quoting United States v. Thomas, 284 F.3d 746, 752 (7th Cir. 2002)).

      Even viewing the evidence in the light most favorable to the prosecution,

however, there was no agreement here. First, the government’s case was based not

on “evidence of a prolonged and actively pursued course of sales,” Ramirez, 2013

WL 1789529, at *5, but on a single failed drug transaction. While this, alone, is

not fatal to the government’s case, the government also failed to present any

evidence that Dinardo and his suppliers had a “shared stake” in his illegal venture.

The government presented no evidence, for example, that Dinardo’s suppliers

“fronted” him drugs on credit or expected to share in the profits he made from

redistribution. See United States v. Webster, 623 F.3d 901, 907 (9th Cir. 2010)

(affirming conspiracy conviction where defendant received kickbacks from buyer

and fronted drugs on credit, showing shared stake in profits); United States v.

Mincoff, 574 F.3d 1186, 1194 (9th Cir. 2009) (affirming conspiracy conviction

where seller’s fronting of drugs “demonstrated mutual trust” and showed shared

stake in buyer’s successful retail sales). Instead, the evidence showed that



                                         -3-
Dinardo’s suppliers required him to pay cash in full, making their profit at the

point of sale. See Thomas, 284 F.3d at 753 (finding no shared stake where

defendant’s profit “did not depend on [his buyers’] subsequent success in

distributing the cocaine”). Nor was there any evidence that Dinardo’s suppliers

helped him redistribute the drugs, connected him with potential customers, or had

any other personal involvement with Dinardo’s retail sales. See Webster, 623 F.3d

at 907 (finding that seller’s assistance with buyer’s “downstream distribution” was

evidence of shared stake). Even evidence that Dinardo’s suppliers drove him

around town and bought him lunch while awaiting the drugs is not evidence of

more than a buyer-seller relationship. See Thomas, 284 F.3d at 753 (explaining

that evidence that defendant “was attempting to accommodate [the buyer] . . . and

so to retain her as a customer” was not evidence of a shared stake in retail sales).

      As in Ramirez, therefore, “the government presented no evidence indicating

that [the seller] had any kind of involvement in [the buyer’s subsequent] drug

sales” and no evidence of an “agreement [to] . . . ‘further distribute the drugs.’”

2013 WL 1789529, at *5 (quoting Lennick, 18 F.3d at 819). In the absence of such

evidence, a rational jury could not have found beyond a reasonable doubt that

Dinardo was a conspirator rather than merely a buyer, and it was clear error to

deny Dinardo’s motion for acquittal.



                                          -4-
      Accordingly, we REVERSE the judgment and VACATE Dinardo’s

sentence and conviction. We need not and do not reach the other issues presented

on appeal.




                                       -5-
