                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 24 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10370

              Plaintiff - Appellee,              D.C. No. 2:04-cr-00387-MCE-1

  v.
                                                 MEMORANDUM*
JESUS RODRIGUEZ,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Morrison C. England, Chief District Judge, Presiding

                       Argued and Submitted June 11, 2013
                            San Francisco, California

Before: FERNANDEZ and CALLAHAN, Circuit Judges, and VANCE, Chief
District Judge.**

       Defendant-Appellant Jesus Rodriguez appeals his conviction and sentence

for two counts of possession of methamphetamine with intent to distribute. He

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Sarah S. Vance, Chief District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.

                                          1
contends that an alleged Brady violation warrants dismissal of the indictment, or

alternatively, a new trial, and raises several other points of alleged error. See

Brady v. Maryland, 373 U.S. 83, 87 (1963). We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

                                           I

      Rodriguez contends that the government violated its Brady obligations by

failing to disclose that a cooperating defendant, Marcos Mendez, told it that a

government informant had “called him a lot to do drugs” because this information

would have bolstered Rodriguez’s entrapment defense. In order to establish a

Brady violation, a defendant must show: (1) that the information was favorable; (2)

that the government suppressed it; and (3) prejudice. See United States v. Kohring,

637 F.3d 895, 901 (9th Cir. 2011). Even if the information was favorable to

Rodriguez, we conclude that there was no Brady violation because the government

did not suppress the information and Rodriguez cannot establish prejudice.

      A Brady claim fails due to a lack of government suppression where the

government provides the defense with “the means of obtaining exculpatory

evidence.” United States v. Bond, 552 F.3d 1092, 1096 n.4 (9th Cir. 2009). Here,

the government provided the defense with the case agent’s notes of an interview

with Mendez at the beginning of the trial. Rodriguez could have subpoenaed or


                                           2
otherwise attempted to contact Mendez, but took no action until after the trial.

Under these circumstances, the government did not suppress any allegedly

favorable information.

      Moreover, even if the government had suppressed the information,

Rodriguez’s Brady claim would fail because he cannot demonstrate prejudice. “A

finding of prejudice requires that the conduct have some impact on the outcome of

the proceeding – i.e., a reasonable probability that the result of the proceeding

would have been different or that it so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” United States v. Wilkes, 662 F.3d

524, 537 (9th Cir. 2011), cert. denied, 132 S. Ct. 2119 (2012). Even assuming that

Mendez would not have invoked his Fifth Amendment privilege against self-

incrimination, would have testified as Rodriguez contends, and the jury would

have believed him despite the inconsistencies in his story, the evidence against

Rodriguez would remain overwhelming.

      The government established that Rodriguez was not induced and was

predisposed to commit the crime. It introduced evidence that: (a) Rodriguez was

comfortable discussing drugs with a government informant and familiar with drug

terminology; (b) had $20,000 heat sealed in a safe at his store; (c) previously sold

drugs to another cooperating defendant; (d) attempted to flee from the police and


                                          3
conceal evidence; and (e) engaged in multiple large-scale drug transactions.

Moreover, Rodriguez’s own testimony was problematic. Rodriguez contended that

he made a relatively small amount of money off of the drug sales because he did

not know how to cut the drugs, yet still decided to engage in multiple sales.

Accordingly, there was no Brady violation.1

                                          II

      Rodriguez also claims that the district court abused its discretion by denying

his mid-trial request for a continuance to allow him time to subpoena Mendez. “A

trial court clearly abuses its discretion only if denial of the continuance was

arbitrary or unreasonable.” Wilkes, 662 F.3d at 543. The district court’s decision

was not arbitrary or unreasonable because: (1) Rodriguez was not diligent, as he

had a full week to review the agent’s notes and attempt to subpoena or otherwise

contact Mendez; (2) it is unclear whether Mendez would have provided the sought-

after testimony; and (3) regardless, Rodriguez suffered no harm in light of the

overwhelming evidence against him. Cf. United States v. Rivera-Guerrero, 426

F.3d 1130, 1138-39 (9th Cir. 2005) (discussing factors for evaluating whether the

denial of a continuance is arbitrary or unreasonable). Moreover, as the government



      1
      Despite Rodriguez’s heated rhetoric, he has not shown outrageous
government conduct in this respect or otherwise.

                                           4
noted at oral argument, it is unlikely that the continuance would have only delayed

the trial by one trial day. An attempt to subpoena Mendez would have raised

issues concerning immunity and the propriety of asserting the Fifth Amendment

privilege, necessitating further consideration, possible hearings and motion

practice. The district court did not abuse its discretion.

                                          III

      Rodriguez also argues that the district court erroneously overruled his

objection to the government’s closing argument. The government argued that even

if a government informant had contacted Rodriguez to persuade him to sell drugs

as Rodriguez claimed, it did not constitute inducement because that type of contact

would not create a substantial risk that an otherwise law-abiding citizen would

commit the crime.

      “Entrapment has two elements: government inducement of the crime and the

absence of predisposition on the part of the defendant.” United States v. Sandoval-

Mendoza, 472 F.3d 645, 648 (9th Cir. 2006) (internal quotation marks omitted).

“Inducement is any government conduct creating a substantial risk that an

otherwise law-abiding person would commit a criminal offense.” Id. at 648

(internal quotation marks omitted). Promises of a criminal reward, however,

cannot constitute inducement. United States v. Spentz, 653 F.3d 815, 820 n.4 (9th


                                           5
Cir. 2011) (alteration marks omitted), cert. denied, 132 S. Ct. 1600 (2012). The

government was entitled to argue that promises of large profits from drug sales do

not constitute inducement and would not have induced a law-abiding person to

commit the crime. Accordingly, the district court correctly overruled Rodriguez’s

objection.

                                          IV

      Rodriguez also challenges his sentence. He asserts that: (a) the government

engaged in sentencing manipulation by setting up multiple transactions which

“stacked” the weight of the drugs against him for sentencing purposes; (b) the

court should have used the weight of the methamphetamine mixture rather than the

pure methamphetamine to determine the offense level; (c) the court failed to give

proper consideration to his personal circumstances; and (d) the sentence was

substantively unreasonable. We find these arguments unavailing.

                                          A

      We have previously recognized that a district court may consider the full

amount of drugs at issue where law enforcement sets up multiple drug transactions

with a defendant for legitimate reasons. See United States v. Baker, 63 F.3d 1478,

1500 (9th Cir. 1995). Here, there was evidence that the government continued its

investigation to obtain better evidence (specifically, a higher quality video) and set


                                          6
up a large purchase at the end of its investigation in order to get the largest quantity

of drugs off the street as was possible. Consequently, the district court did not

clearly err in determining that the government did not engage in sentencing

manipulation. See id.

                                           B

      The U.S. Sentencing Commission Guidelines Manual indicates that the court

should use the “greater” offense level generated by considering either the weight of

the mixture containing methamphetamine or the weight of the actual

methamphetamine. U.S.S.G. § 2D1.1 Drug Quantity Table Note (B); see also

United States v. Fairchild, 189 F.3d 769, 778 (8th Cir. 1999) (“The Sentencing

Guidelines Drug Quantity Table specifically directs district courts to use the

method that results in the greatest offense level for the defendant”). Here, that

required the district court to use the weight of the actual methamphetamine. Thus,

the district court properly rejected Rodriguez’s objection.

                                           C

      The record shows that the district court considered Rodriguez’s arguments

about his personal circumstances. The court acknowledged that he had generated a

great deal of goodwill in the local area, was well-liked, had helped local farm

workers, is personable, had no criminal history, and had no problems on pretrial


                                           7
release. Nonetheless, the court also noted the seriousness of Rodriguez’s crime

(which involved large quantities of high-quality methamphetamine), observed that

he had involved his sister in his criminal enterprise, found that he had obstructed

justice with his testimony at trial, and determined that his sentence was appropriate

when compared with other defendants who had pleaded guilty and not been

involved in trafficking such large amounts of high-quality methamphetamine.

Consequently, the district court did not commit procedural error.

                                          D

      We also conclude that the district court thoroughly considered Rodriguez’s

arguments before imposing a below-Guidelines sentence. The sentence was

reasonable under the totality of the circumstances here. See United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc).

      AFFIRMED2




      2
        Rodriguez also seeks reassignment to a different district judge on remand.
As we find no basis for remand, we need not consider this request. Regardless,
there was no evidence of personal bias or other unusual circumstances that would
warrant reassignment here. See Ellis v. U.S. District Court, 356 F.3d 1198, 1211
(9th Cir. 2004) (en banc).

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