                                                                         FILED
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 18 2016
                            FOR THE NINTH CIRCUIT                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                         No. 13-10171

              Plaintiff - Appellee,               D.C. No. 2:09-cr-01509-NVW-7
                                                  District of Arizona,
 v.                                               Phoenix

MARIO BENITEZ,
                                                  ORDER
              Defendant - Appellant.


Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

      Appellant Benitez’s petition for panel rehearing is GRANTED. The

memorandum disposition filed October 2, 2015 is withdrawn and replaced by the

memorandum disposition filed contemporaneously with this order.

      The pending petition for rehearing en banc is now moot. The parties may

file additional petitions for panel rehearing or rehearing en banc.
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAY 18 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 13-10171

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01509-NVW-7

 v.
                                                 MEMORANDUM*
MARIO BENITEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                      Argued and Submitted August 11, 2015
                            San Francisco, California

Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.

      Mario Benitez appeals his 144-month sentence, imposed following his

convictions for possession with intent to distribute a controlled substance (21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)) and conspiracy to possess a controlled




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
substance with intent to distribute (21 U.S.C. § 846).1 We vacate the sentence and

remand in light of the recent sentence reduction of Benitez’s co-defendant Marcela

Benitez-Salcido.

      At the resentencing, the district court varied Benitez’s sentence downward

because it considered him to be substantially less culpable than Benitez-Salcido.

Recently, the district court reduced Benitez-Salcido’s sentence pursuant to

Amendment 7822 and, in response to our inquiry, stated that it “welcomes the

opportunity to” revisit Benitez’s sentence to consider whether that reduction

created an unreasonable disparity between the two sentences. In light of the

district court’s statement, we vacate the sentence and remand for resentencing on

an open record.

      Benitez also raises various other challenges to his sentence. Because we

vacate and remand, we need not reach the majority of these arguments. For the


      1
         Benitez was also convicted of conspiracy to import controlled substances
(21 U.S.C. § 963). The district court sentenced him to 144 months imprisonment
for the three convictions. Benitez appealed, and this court vacated the conspiracy
to import controlled substances conviction for lack of evidence. United States v.
Benitez, 500 F. App’x 660, 662-63 (9th Cir. 2012). On remand, the district court
imposed the same 144-month sentence for the remaining two convictions as it had
for all three convictions.
      2
       Amendment 782 reduced by two the base offense level for certain drug
crimes. United States Sentencing Commission, Guidelines Manual, supp. app’x.
C, amend 782 (2014).

                                         2
benefit of the district court, however, we address Benitez’s argument that the

district court erred in assigning him a base offense level of 36 because there was

insufficient evidence to attribute to him at least 50 kg of cocaine. For sentencing

purposes, the government “is required to prove the approximate quantity [of a

controlled substance] by a preponderance of the evidence.” United States v. Culps,

300 F.3d 1069, 1076 (9th Cir. 2002) (internal quotations and citations omitted).

Here, a witness testified 1) that he purchased drugs from Benitez’s organization on

six or seven occasions; 2) that he once bought 20 kg of cocaine from the

organization and; 3) that when traveling from Florida to California to purchase

cocaine, he usually carried enough cash with him to purchase approximately 10 kg

worth. In addition, on one occasion the witness was arrested with approximately

11 kg of cocaine after buying from the organization. This evidence suffices to

attribute at least 50 kg of cocaine to Benitez.3

      The sentence is VACATED and the case REMANDED for resentencing.




      3
         Benitez also argues that the two pre-sentence reports committed various
errors in attributing 50.3 grams of crack cocaine to him. Even if Benitez is right,
these alleged errors are harmless, as Benitez’s base offense level is still 36 whether
one attributes to him 50.3 or zero grams of crack cocaine.

                                           3
