                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      NOV 28 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No.    15-50353

                  Plaintiff-Appellee,            D.C. No.
                                                 2:14-cr-00209-TJH-1
   v.

 ISMAEL GUTIERREZ VILAVAZO, AKA                  MEMORANDUM*
 Ismael Gutierrez, AKA Mike Gutierrez,
 AKA Mikey,

                  Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Central District of California
                     Terry J. Hatter, District Judge, Presiding

                      Argued and Submitted November 8, 2016
                               Pasadena, California

Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.

        Ismael Gutierrez Vilavazo appeals his conviction and sentence for

conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii),

846, aiding and abetting methamphetamine distribution, 18 U.S.C. § 2(a), and five

counts of knowingly and intentionally using a communications facility to commit a

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
felony, 21 U.S.C. § 843(b). We have jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291, and we affirm.

      1. Gutierrez contends that the district court erred by admitting Jorge

Huerta’s recorded statements because there was insufficient evidence that Huerta

was a co-conspirator. The government must prove to the district court by a

preponderance of the evidence “that there was a conspiracy involving the declarant

and the [defendant], and that the statement was made ‘during the course and in

furtherance of the conspiracy.’” Bourjaily v. United States, 483 U.S. 171, 175

(1987) (quoting Fed. R. Evid. 801(d)(2)(E)). In making these preliminary factual

findings, the court may consider all but privileged evidence, including the hearsay

statements themselves, regardless of admissibility. Id. at 178, 181. Due to its

presumptive unreliability, “a co-conspirator’s statement implicating the defendant

in the alleged conspiracy must be corroborated by fairly incriminating evidence.”

United States v. Silverman, 861 F.2d 571, 578 (9th Cir. 1988).

      The district court did not err by admitting Huerta’s out-of-court statements

without first making the Bourjaily findings. “A district court has the discretion to

vary the order of proof” by “admitt[ing] the statement[s] . . . prior to the

presentation of independent evidence of the existence of the conspiracy.” United

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States v. Loya, 807 F.2d 1483, 1490 (9th Cir. 1987). Here, the district court noted

its discretion to delay ruling on the admissibility of Huerta’s statements and invited

Gutierrez to challenge them later, stating that they came in “subject to a motion to

strike.” As Gutierrez never moved to strike the statements, we review their

admission for plain error. See United States v. Bridgeforth, 441 F.3d 864, 869 (9th

Cir. 2006).

      There was ample independent evidence that Gutierrez and Huerta conspired

to sell methamphetamine. To begin with, Gutierrez was actively involved in

setting the terms of the sale. Gutierrez told the informant that he had around two

pounds of methamphetamine but it was not “readily available” because he was

concerned that the police were investigating him. Gutierrez told the informant that

he would “get [him] in touch with one of his contacts or workers.” Gutierrez

instructed the informant to go alone to the meeting because Huerta “didn’t want

anybody else there.”

      Gutierrez and the informant discussed a price of $450 per ounce. When

Huerta quoted the informant a price of “[$]600,” the informant asked Gutierrez to

“tell [Huerta] to . . . bring it down a bit, because . . . [they] had agreed it would be

less.” These exchanges corroborate Huerta’s later statement agreeing to honor the

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price quoted by Gutierrez, in which he told the informant, “if you talked to

[Gutierrez] about it, I can leave it at about that price, [$]450.”

      Other independent evidence also shows Gutierrez’s role in the conspiracy as

an intermediary between the informant and Huerta. The informant initially asked

Gutierrez whether he could acquire the methamphetamine on credit or if he would

have to pay cash. Six days later, Gutierrez told the informant, “[Huerta] wants you

to pay him everything,” which the informant understood to mean, “he’s not going

to give me any credit on the drugs.”

      Phone records further corroborate the existence of the conspiracy. Gutierrez

and Huerta spoke for two minutes immediately before Huerta first called the

informant to discuss the transaction. The next day, the informant called Gutierrez

to tell him that he had enough money for two ounces. Gutierrez informed him,

“I’ll tell [Huerta] . . . right now to call you.” Gutierrez then immediately made

several calls to Huerta and Huerta’s mother-in-law. The number and timing of

these calls suggest that they were attempts to convey the informant’s readiness to

purchase methamphetamine rather than innocuous communications with family

members. See United States v. Boykin, 785 F.3d 1352, 1359-60 (9th Cir. 2015),

cert. denied, 136 S. Ct. 272 (2015).

                                            4
      Finally, when the informant expressed doubt about dealing solely with

Huerta, Gutierrez sought to reassure him, stating, “[T]hey’re my people.” Later,

the informant again asked, “[A]re you going to be there, because . . . I don’t know

[Huerta], and . . . the thing is to do the deal with you . . . and with him too, at the

same time.” Gutierrez responded, “[I]t’s the same thing, he’s my nephew.”

Gutierrez’s statements corroborate Huerta’s later statements to the informant that

he (Huerta) and Gutierrez “are the same” and “are all one hand.”

      Because there was substantial independent evidence that corroborated

Huerta’s out-of-court statements implicating Gutierrez in the conspiracy, the court

did not abuse its discretion in admitting Huerta’s statements, let alone commit

plain error.

      2. Gutierrez argues that there was insufficient evidence to support both the

conspiracy and the aiding and abetting counts. In reviewing this claim, the

“critical inquiry” is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 318-19 (1979).




                                            5
      “In order to prove a conspiracy under 21 U.S.C. § 846, the prosecution must

prove that: (1) there was an agreement to accomplish an objective made criminal

by § 841(a)(1), which prohibits the knowing or intentional distribution of or

possession with intent to distribute a controlled substance; and (2) the defendant

intended to commit the underlying offense.” United States v. Suarez, 682 F.3d

1214, 1219 (9th Cir. 2012). There was sufficient evidence, discussed above, that

Gutierrez and Huerta entered into an agreement. The government did not need to

prove that anyone committed a crime. “[P]roof of an overt act in furtherance of the

conspiracy is not required in order to prove a violation of [21 U.S.C.] § 846; proof

of an agreement alone is sufficient.” Id. (citing United States v. Shabani, 513 U.S.

10, 15-16 (1994)).

      The elements of aiding and abetting are “(1) that the accused had the specific

intent to facilitate the commission of a crime by another, (2) that the accused had

the requisite intent of the underlying substantive offense, (3) that the accused

assisted or participated in the commission of the underlying substantive offense,

and (4) that someone committed the underlying substantive offense.” United

States v. Shorty, 741 F.3d 961, 970 (9th Cir. 2013) (quoting United States v. Singh,

532 F.3d 1053, 1057-58 (9th Cir. 2008)). Here, the evidence “was enough to show

                                          6
that [Gutierrez] associated with the criminal venture, participated in it, and sought,

by his actions, to make it a success.” Boykin, 785 F.3d at 1359.

      Gutierrez argues that there was no evidence that Huerta was “Moreno,” the

person in the white Chrysler 300 who delivered methamphetamine to the

informant. During closing argument, defense counsel repeatedly told the jury that

Moreno was in fact Huerta. Regardless, it is irrelevant whether Huerta or an

associate of his conducted the exchange. Gutierrez does not dispute “that someone

committed the underlying substantive offense.” Shorty, 741 F.3d at 970 (emphasis

added). The identity of that person has no bearing on the evidence of Gutierrez’s

involvement.

      3. Gutierrez also challenges the district court’s admission of two other

pieces of evidence: hearsay evidence that he had argued with someone about some

lost drugs, and that he had ordered another person to deliver drugs, and, six months

after the charged offense, someone using Huerta’s wife’s phone visited websites

“regarding narcotics” nine times over a 10-day period. The admission of this

evidence may well have been improper, but any errors were harmless beyond a

reasonable doubt. In both instances the testimony was brief and the other evidence




                                          7
of Gutierrez’s guilt overwhelming. See, e.g., United States v. James, 139 F.3d 709,

712 (9th Cir. 1998).

      4. Gutierrez’s challenge to his convictions for using a communications

facility to commit a felony depends on reversal of the conspiracy and aiding and

abetting counts. Thus, his argument necessarily fails because we affirm his

convictions on those counts.

      5. Finally, Gutierrez asserts that the district court committed procedural

error by failing to determine the applicable range under the Sentencing Guidelines

before sentencing him. A district court abuses its discretion by “failing to calculate

(or improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S.

38, 51 (2007). In his reply brief, however, Gutierrez concedes that “[t]he district

court adopted the guidelines calculations contained within the [pre-sentence

report].” He argues instead that the base offense level was calculated incorrectly.

Gutierrez reasons that because the jury found the quantity of actual

methamphetamine to be less than 50 grams, his base offense level was 28 rather

than 30. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(6) (U.S. Sentencing

Comm’n 2014).




                                          8
      Gutierrez stipulated that the substance sold to the informant was 87% pure

methamphetamine. Therefore, the district court reasonably calculated the base

offense level using “ice” rather than regular methamphetamine because the mixture

was “of at least 80% purity.” Id. § 2D1.1 cmt. C; see United States v. Lee, 725

F.3d 1159, 1166 n.7 (9th Cir. 2013) (explaining that, “[f]or example, a 10 KG

mixture of methamphetamine of 80% purity would be 10 KG of

Methamphetamine, 8 KG of Methamphetamine (actual), and 10 KG of Ice”). The

base offense level for ice is calculated based on “the entire weight of [the]

mixture.” U.S. Sentencing Guidelines Manual § 2D1.1 cmt. A, B (U.S. Sentencing

Comm’n 2014). Since Gutierrez stipulated that the methamphetamine mixture

weighed 55.9 grams, the district court properly determined the base offense level

to be 30, based on 55.9 grams of ice. See id. § 2D1.1(c)(5). There is no

inconsistency between the district court’s calculation and the jury’s finding that

“the . . . amount of ‘pure’ or ‘actual’ methamphetamine” was “less than fifty

grams.” Thus, United States v. Pimentel-Lopez, 828 F.3d 1173 (9th Cir. 2016), is

inapplicable.

      AFFIRMED.




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