                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             MAR 16 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-30286

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-05159-BHS-8
 v.

FABIAN VALDOVINOS-PEREZ,                         MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-30289

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-05159-BHS-10
 v.

DAVID LOZANO-ALVARADO,

              Defendant-Appellant.


                   Appeals from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                       Argued and Submitted March 8, 2017
                               Seattle, Washington

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.

      Fabian Valdovinos-Perez appeals his convictions for conspiracy to distribute

controlled substances in violation of 21 U.S.C. § 841(a)(1) (Count 2), possession

of methamphetamine and heroin with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1) (Count 9), possession of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 10), and being an illegal

alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A) (Count

11). David Lozano-Alvarado appeals his conviction for conspiracy to distribute

controlled substances in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      The district court did not err by denying Valdovinos-Perez relief under

Brady v. Maryland, 373 U.S. 83 (1963). Valdovinos-Perez failed to establish that

the 200 pages of so-called “Brady-type” material was evidence favorable to the

accused. The government provided its contract with Reyes and evidence regarding

Reyes’s state criminal record to the defendants in sufficient time to be of value at

trial. Because Valdovinos-Perez “had substantial opportunity to use the

documents,” he suffered no prejudice. United States v. Gordon, 844 F.2d 1397,

1403 (9th Cir. 1988).




                                           2
      Valdovinos-Perez failed to renew at trial his motion to sever, and the record

does not reflect “that he diligently pursued severance or that renewing the motion

would have been an unnecessary formality.” United States v. Decoud, 456 F.3d

996, 1008 (9th Cir. 2006). Therefore, Valdovinos-Perez waived any challenge to

the district court’s failure to sua sponte sever his case from the co-defendants’ trial.

Id.

      We reject Valdovinos-Perez’s claim that the evidence was insufficient to

support his convictions because, viewing the record in the light most favorable to

the prosecution, a reasonable jury could find the required elements of each offense

beyond a reasonable doubt. See United States v. Nevils, 598 F.3d 1158, 1164 (9th

Cir. 2010) (en banc). On Count 2, a reasonable jury could find a single conspiracy

based on the common purpose of bringing drugs into Washington, the relative

stability of the conspiracy’s membership, the contacts among the conspirators, and

the reasonable inference that the conspirators were benefitting from their co-

conspirators’ activities. See United States v. Fernandez, 388 F.3d 1199, 1226 (9th

Cir. 2004); United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999); United

States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984). A reasonable jury could also

find that Valdovinos-Perez had at least a “slight connection” to the conspiracy,

United States v. Torralba-Mendia, 784 F.3d 652, 663–64 (9th Cir. 2015) (internal


                                           3
quotation marks omitted), given the evidence of his participation in a related drug

deal, his transportation of drugs in furtherance of the conspiracy, and his

apprehension at a stash house. Valdovinos-Perez’s challenge to the sufficiency of

the evidence of possession in Counts 9, 10, and 11 also fails. Viewing the

evidence in the light most favorable to the prosecution, a jury could reasonably

conclude that Valdovinos-Perez constructively possessed the methamphetamine,

heroin, and firearms found in the trailer where he was apprehended. The evidence

tying him to the trailer included testimony indicating that he possessed a key to the

trailer, prior observation of his entering and exiting the trailer, and the presence of

items in the trailer linked to Valdovinos-Perez. See Nevils, 598 F.3d at 1167–70;

United States v. Walker, 993 F.2d 196, 200 (9th Cir. 1993).

      When viewed in the light most favorable to the prosecution, sufficient

evidence also supported Lozano-Alvarado’s conspiracy conviction. A reasonable

jury could conclude that Lozano-Alvarado’s question to Reyes whether he would

be making a trip to California, and his statement that perhaps Lozano-Alvarado

would be “the one who will give [Reyes] some things” in California, showed

Lozano-Alvarado’s knowledge of the existence of the conspiracy to transport drugs

from California to Washington, as well as his expectation that he would have an

ongoing role in such a conspiracy. Considering this evidence along with evidence


                                            4
that Lozano-Alvarado transported heroin from California, used the same method

for concealing the drugs in a chip bag that other members of the conspiracy used,

and was picked up at the bus station in Portland by one of the members of the

conspiracy at the request of co-conspirator Benitez-Castillo, a reasonable jury

could conclude that Lozano-Alvarado had at least a “slight connection” to the

conspiracy. Torralba-Mendia, 784 F.3d at 664. In light of this evidence, it is

immaterial that Lozano-Alvarado may not have known all the conspirators,

participated in the conspiracy from its beginning, participated in all its enterprises,

or known all its details. Id.

      AFFIRMED.




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