                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 16 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-50390

              Plaintiff-Appellee,                D.C. No.
                                                 3:16-cr-00679-LAB-1
 v.

DALIA MARINA ILDEFONSO,                          MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted March 5, 2018
                              Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and SETTLE,** District
Judge.

1.    The government did not commit misconduct in closing argument. It properly

stated and addressed the required elements of conspiracy and then described the

circumstantial evidence that supported conviction. See United States v. Kojayan, 8

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
F.3d 1315, 1321 (9th Cir. 1993) (“When a prosecutor asks jurors to deduce a

defendant’s guilt from circumstantial evidence, for example, he’s urging them to

take a leap beyond the record, to use their common sense in reaching a conclusion

not explicitly spelled out by the evidence. This is the very essence of jury

summation.”).

2.     The district court did not plainly err by using the preponderance standard to

determine the amount of methamphetamine attributable to Ildefonso at sentencing.

We agree with Ildefonso that the reasoning in United States v. Harrison-Philpot,

978 F.2d 1520 (9th Cir. 1992), is inapposite to her case. However, because of our

precedent, United States v. Flores, 725 F.3d 1028, 1035 (9th Cir. 2013) (citing

United States v. Rosacker, 314 F.3d 422, 429-30 (9th Cir. 2002) (holding the clear

and convincing standard that applies to cases where a sentencing factor has an

extremely disproportionate effect on the sentence does not apply to drug quantity

approximations)), we cannot conclude that any error is “so clear-cut, so obvious,

[that] a competent district judge should be able to avoid it without benefit of

objection,” United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007).

      AFFIRMED.




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