                                                                                FILED
                           NOT FOR PUBLICATION                                  DEC 12 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10433

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

  v.
                                                 MEMORANDUM*
MARIO BENITEZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                          Submitted December 5, 2012**
                            San Francisco, California

Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.

       Defendant-Appellant Mario Benitez appeals his conviction and sentence. He

was convicted of conspiracy to possess with intent to distribute controlled

substances in violation of 21 U.S.C. § 846, conspiracy to import controlled

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
substances in violation of 21 U.S.C. § 963, and possession with intent to distribute

five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(ii). The United States Supreme Court has held that sufficiency of

evidence in a criminal case is tested by asking whether a rational jury could find

each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979); see also United States v. Nevils, 598 F.3d 1158, 1163–64

(9th Cir. 2010) (en banc). Here, because there was not sufficient evidence for a

rational jury to conclude beyond a reasonable doubt that Defendant was guilty of

conspiracy to import drugs, we vacate that conviction and the sentence imposed on

that count. However, Defendant’s conviction for conspiracy to distribute drugs is

not affected by that conclusion, nor is his conviction for possession with intent to

distribute. Moreover, we affirm the district court’s decision that Defendant was

not entitled to a mitigating role reduction. And we conclude that there was no error

in the district court’s comments at sentencing.

      Defendant contends first that there was insufficient evidence that he was

guilty of conspiracy to import drugs. There is sufficient evidence to support

Defendant’s conviction for participation in that conspiracy if the government

proves, beyond a reasonable doubt, “even a slight connection” between Defendant

and the conspiracy. See United States v. Alvarez, 358 F.3d 1194, 1201 (9th Cir.


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2004). “However, the connection to the conspiracy must be shown to be

‘knowledgeable;’ that is, the government must prove beyond a reasonable doubt

that the defendant knew of his connection to the charged conspiracy.” United

States v. Meyers, 847 F.2d 1408, 1413 (9th Cir. 1988) (internal quotation marks

and citations omitted). Here, the evidence shows two conspiracies. The

government proved Defendant was involved in a conspiracy to distribute

drugs—and Defendant does not contest that conviction. But the government has

not met its burden in showing that Defendant knew of his connection to the second

conspiracy to import the drugs. The problem is simply that there was not sufficient

evidence presented showing that Defendant knew that the drugs being purchased

had been imported by the supplier with whom he conspired. All of Defendant’s

actions could have merely shown conspiracy to distribute drugs, and could have

been the same if Zazueta-Miranda had not imported the drugs but had bought them

first from another person who was the importer. For example, Defendant was not

at the shop when a Jeep with Mexican license plates arrived and unloaded the

drugs. There was not evidence from which a rational jury could conclude beyond a

reasonable doubt that Defendant personally knew that the drugs being distributed

had been imported by his immediate supplier. And the government did not present

any evidence that Defendant knew the drugs he tested, weighed, and repackaged


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had just recently been transported into the country. We conclude that there was not

sufficient evidence that Defendant conspired to import drugs, and we vacate his

conviction and sentence on that charge and remand for further proceedings

consistent with this disposition.1

      Defendant next contends that he was entitled to a mitigating role reduction

under United States Sentencing Guidelines Manual § 3B1.2 (2010). To be eligible

for a mitigating role reduction, Defendant bore the burden of showing by a

preponderance of evidence that he is “substantially less culpable than the average

participant.” U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.3(A); see United

States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). Defendant contends that

he was merely a follower and thus was substantially less culpable than his

codefendants. But we have previously rejected similar arguments. See, e.g.,

United States v. Sanchez, 908 F.2d 1443, 1449–50 (9th Cir. 1990). The evidence

at trial showed that Defendant was present for six or seven cocaine purchases, and

at least two of these purchases involved more than ten kilograms of cocaine. See



      1
        We note, however, that because Defendant is currently serving concurrent
sentences on the other convictions arising out of his trial that are unaffected by this
disposition, there may not be effect on Defendant’s sentence in this case.
However, the question of appropriate sentence on the charges of conviction that
were not challenged is for the district court to decide in the first instance on
remand.

                                           4
United States v. Rodriguez-Castro, 641 F.3d 1189, 1192–93 (9th Cir. 2011)

(holding that a defendant entrusted with a large quantity of cocaine was not a

minor participant). Defendant assisted his sister by maintaining the stash house;

opening and closing entrances; and helping test, weigh, and repackage the cocaine.

See United States v. Rexford, 903 F.2d 1280, 1282–83 (9th Cir. 1990) (holding that

a defendant was not a minor participant in drug smuggling operation when he

packaged fifteen pounds of marijuana). Defendant also engaged in

countersurveillance in the neighborhood around the stash house. And, after the

stash house was compromised, Defendant was responsible for clearing the house

out. The evidence showed that Defendant was sufficiently involved in the drug-

trafficking operation such that he cannot be considered a minor participant. That

Defendant’s sister had a greater role than he does not entitle him automatically to a

minor or minimal participant status. He received no leadership role enhancement.

But the district court did not clearly err in denying the mitigating role reduction.

      Finally, Defendant contends that the district court committed plain error and

violated his due-process rights at sentencing by commenting on his status as a

naturalized citizen. Defendant did not object at sentencing, so we review his

sentencing for plain error. United States v. Burgum, 633 F.3d 810, 814–16 (9th

Cir. 2011). We perceive no error, plain or otherwise. The district court’s comment


                                           5
was in the nature of an observation that Defendant had studied the rule of law as

part of the naturalization process but unfortunately had devoted himself to a

criminal scheme. The district court based Defendant’s sentence on the nature of

his crime and did not violate United States Sentencing Guidelines Manual

§ 5H1.10 or Defendant’s due-process rights. Even assuming, arguendo, that

naturalized status is embraced by “national origin” under § 5H1.10, a district court

violates due process only if the court enhances the defendant’s sentence because of

impermissible factors. See Burgum, 633 F.3d at 814–16; see also United States v.

Borrero-Isaza, 887 F.2d 1349, 1352–55 (9th Cir. 1989). That did not occur here.

The district court did not base Defendant’s sentence on his naturalized status.

Rather, Defendant’s sentence was based on his violation of the law and the factors

in 18 U.S.C. § 3553(a).

      Because this is a mixed judgment, each party will bear its own costs.

      VACATED and REMANDED in part; AFFIRMED in part.




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