                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 30 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10414

              Plaintiff - Appellee,              D.C. No. 4:11-cr-02230-DCB-
                                                 JJM-2
  v.

MICHAEL EDWARD ALCANTAR,                         MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                    Argued and Submitted September 11, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.**




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
      Defendant-Appellant Michael Alcantar appeals his conviction after jury trial

of multiple charges stemming from his participation in an attempt to purchase

cocaine that culminated in the firebombing of a residence. The following are the

relevant convictions: (1) Conspiracy to possess a destructive device, in violation of

18 U.S.C. § 371 and 26 U.S.C. § 5861(d); (2) Possession of a destructive device, in

violation of 26 U.S.C. § 5861(d); (3) Conspiracy to possess with the intent to

distribute between 500 grams and 5 kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B)(ii)(II), and 846; (4) Using or carrying a destructive

device during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §

924(c); and (5) Conspiracy to use or carry a destructive device during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(o).

      The evidence at trial showed that Alcantar was the “supervisor” of a group

of felons who were members of the New Mexican Mafia. They embarked on a

plan to buy and sell drugs in order to benefit members of the group still in prison.

Their planned purchase of drugs at a park in Tucson was unsuccessful because of

the seller’s inability to provide the drugs, and the planned retaliation for his refusal

to provide compensation was a firebombing that hit the wrong target.

      Appellant first challenges the sufficiency of the evidence. There was

sufficient evidence of conspiracy to possess with intent to distribute cocaine.


                                           2
Witnesses testified to Alcantar’s approval of the drug purchase plan. The evidence

thus established the defendant’s agreement and intent to participate in a drug

transaction. The agreement and the intent and the illegal objective were clear and

the government satisfied its burden. See United States v. Yossunthorn, 167 F.3d

1267, 1270 (9th Cir. 1999). The evidence was also sufficient to show that the

destructive device was used “during and in relation to” the underlying drug

trafficking conspiracy.

      The government failed to disclose some telephone records in apparent

violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). The records would at

best, however, have provided limited impeachment evidence concerning the lack of

phone calls between appellant and one of the coconspirators during the period

before the implementation of the plan. The evidence should have been disclosed

because it could have been used for impeachment, but there is no reasonable

probability that it would have affected the jury’s decision in the case and hence the

defendant suffered no prejudice. See United States v. Kohring, 637 F.3d 895, 902

(9th Cir. 2010) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

Accordingly, there was no violation of the defendant’s constitutional rights. See

United States v. Williams, 547 F.3d 1187, 1202 (9th Cir. 2008) (setting forth the

requisite elements of a constitutional violation).


                                           3
      The district court properly denied the motion to dismiss that asserted a lack

of jurisdiction under the Commerce Clause. See Gonzalez v. Raich, 545 U.S. 1

(2005). Alcantar’s other sentencing arguments are also foreclosed. See United

States v. Major, 676 F.3d 803, 812 (9th Cir. 2012), United States v. Chaidez, 916

F.2d 563, 565 (9th Cir. 1990), United States v. Wilkins, 911 F.2d 337, 339–40 (9th

Cir. 1990).

      AFFIRMED.




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