                                                                                 FILED
                             NOT FOR PUBLICATION                                  DEC 23 2009

                                                                             MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                           U.S . CO U RT OF AP PE A LS




                              FOR THE NINTH CIRCUIT



 UNITED STATES,                                     No. 06-10076

              Plaintiff-Appellee,                   D.C. No. CR-03-00156-WHA

   v.
                                                    MEMORANDUM *
 EFREN RODRIGUEZ,

              Defendant-Appellant.



                     Appeal from the United States District Court
                       for the Northern District of California
                     William H. Alsup, District Judge, Presiding

                        Argued and Submitted October 9, 2009
                              San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and SHADUR, ** District
Judge.




         *
              This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Milton I. Shadur, Senior United States District Judge for the
Northern District of Illinois, sitting by designation.
       Efren Rodriguez ('Rodriguez') appeals (1) his criminal conviction, after a

jury trial, on eight counts of aiding and abetting possession, with the intent to

distribute, methamphetamine (hereafter referred to by the colloquial term 'meth')

and one count of maintaining a drug-involved premises and (2) his resulting

sentence. We affirm.

                                      Bacµground

       Rodriguez was tried and convicted of the above-described eight meth-related

counts in violation of 21 U.S.C. y 841(a)(1) and 18 U.S.C. y 21 (Counts Eight to

Fifteen) and one count of maintaining a drug-involved premises in violation of 21

U.S.C. y 856 (Count Sixteen). He was sentenced to 108 months' concurrent

imprisonment on each count, followed by five years' supervised release, and was

also ordered to pay a special assessment of ü900 and a ü20,000 fine.

       Between November 30, 2001 and May 20, 2003 Rodriguez owned the

Puerto Vallarta Restaurant in Santa Rosa, California. Unµnown to him, one of his

customers, Jesus Ontiveros Castillo ('Castillo'), was a confidential informant for

the Drug Enforcement Administration ('DEA'). Before April 2002 Castillo and

Rodriguez had conversations in which Rodriguez told Castillo that he could



       1
         Further citations to Title 18 provisions will taµe the form 'Section -,'omitting
the prefatory '18 U.S.C.'

                                             2
arrange a meeting to introduce Castillo to someone who could supply him with

drugs.

         Beginning in April 2002 Rodriguez introduced Castillo to a number of drug

suppliers, starting with Carlos Dominguez ('Dominguez'). After Castillo had

bought some drugs from Dominguez he complained to Rodriguez that Dominguez

had raised his prices. Rodriguez reassured him that Dominguez's prices would

improve once he got to µnow Castillo better and began to trust him. Castillo then

introduced Rodriguez to Charles Vallejo ('Vallejo'), an undercover DEA agent

(again a status unµnown to Rodriguez), and Vallejo complained that Dominguez

was unreliable. He asµed Rodriguez to introduce him to other suppliers, and

Rodriguez said he would. In all Castillo purchased drugs from Dominguez three

times, twice alone and once with Vallejo.

         Over the next several months Rodriguez also introduced Castillo and Vallejo

to Jose Cisneros ('Cisneros') and, later, to Francisco Fernandez ('Fernandez'),

both suppliers of meth. After Rodriguez had introduced them to Cisneros, Castillo

and Vallejo arranged to meet Cisneros at Rodriguez's restaurant to complete a drug

deal. Castillo and Vallejo arrived and told Rodriguez that Cisneros wasn't

returning their phone calls. Rodriguez became angry and called Cisneros to tell

him that they were waiting and that he should come to the restaurant. Cisneros


                                            3
eventually arrived and sold Castillo and Vallejo drugs. Later, on another occasion,

he also sold them meth at Rodriguez's restaurant.

      Rodriguez also put Castillo and Vallejo in touch with Fernandez and acted

as a conduit for information for Fernandez, who did not want Castillo and Vallejo

to have his phone number.2 Rodriguez regularly passed messages between Castillo

and Fernandez about their respective desires to speaµ or meet with each other.

Eventually Fernandez sold Castillo a pound of meth and arranged to sell him

another pound.

      In February 2003 Rodriguez spoµe to Castillo and warned him to be careful

in dealing with Cisneros because he had recently used faµe money to rip off a

friend of his. Later that month Rodriguez gave Castillo contact information for

Aaron Hernandez ('Hernandez') and told him that Hernandez was well connected.

Rodriguez told Castillo that he had vouched for him to Hernandez, that Hernandez

was interested in worµing with Castillo and that Hernandez was the friend to whom

Cisneros had paid faµe money. In response Castillo told Rodriguez to inform

Hernandez that he should expect a call from Castillo. Later, at the end of February,

Castillo met Hernandez in person at Rodriguez's restaurant, where the two men



      2
          Although Rodriguez vouched for Castillo and Vallejo, Fernandez told Rodriguez
to give them only his pager number.

                                           4
discussed drug quantities and prices and Hernandez agreed to sell Castillo five

pounds of meth.

      In the beginning of March 2003 and before the exchange of those drugs,

Hernandez was arrested for an outstanding probation violation warrant at the

agreed-upon exchange location. His car was searched and five pounds of meth

were seized. Rodriguez was arrested on June 4, 2003. After he was advised of his

rights, he said that he was 'playing around with Jesus' and 'that he might have

introduced Jesus to people, and they possibly dealt drugs at the restaurant.'

      Before Rodriguez's trial the government filed an in camera declaration

advising the district court of its investigation into asserted witness intimidation by

Hernandez, one of Rodriguez's co-defendants. Rodriguez's counsel sought

disclosure of the declaration, but the court refused based on what it considered

valid security reasons. Instead the court told defense counsel that Hernandez had

attempted to intimidate two witnesses into testifying that they had received drugs

from Rodriguez. Both witnesses said they would not so testify and reported the

incidents to the government. Although the court ordered the government to

disclose the names of those two witnesses, it ruled that defense counsel was not

entitled to further information other than what could be elicited in cross-examining

the witnesses during trial. Only one of the two witnesses testified, and Rodriguez's


                                           5
counsel did not asµ any questions about Hernandez's intimidation.

      During the sentencing hearing of Rodriguez's co-defendant Dominguez, the

latter's counsel revealed that Dominguez had also been intimidated by Hernandez

and had actually been assaulted by Hernandez in prison. Dominguez was not one

of the two witnesses whom the government had investigated earlier. As the

government explained, it was not aware of the prison assault before Dominguez's

sentencing hearing.

      After the trial and before Rodriguez's sentencing hearing, both defense

counsel and the government filed sentencing memoranda that explained that the

2002 Sentencing Guideline ('Guideline') manual capped Rodriguez's base offense

level at 30 if he qualified for a mitigating role adjustment, while the 2005

Guideline manual (in effect at the time of his sentencing) did not impose such a

cap. At the sentencing hearing the district court asµed what the effect would be of

a finding that Rodriguez was entitled to a mitigating role adjustment as to the drug

sales counts but not as to his maintenance of a drug-involved premises.

Government counsel responded that the base offense level would not be capped at

30, because the court should consider only the base offense level for the highest-

ranµed offense.

      After the conclusion of Rodriguez's sentencing hearing, the court calculated


                                           6
his total offense level as 30 as to the drug possession and distribution counts. It

started with a base offense level of 36 based upon the quantity of drugs, subtracted

two levels for Rodriguez's minor role, two levels under the safety valve provision

and another two levels for acceptance of responsibility. As for the conviction for

maintaining a drug-involved premises, the court calculated the total offense level

for that charge to be 31. It started with a base level of 34, and it subtracted two

levels for acceptance of responsibility and granted a one level downward departure

because Rodriguez had not transported the drugs, negotiated the terms of sale or

profited directly from the transactions (the court did not grant a reduction for

Rodriguez's minor role, stating that '[h]e was not a minor player in connection

with what happened in his restaurant').

      With a total offense level of 31 (the higher of the two end figures), the court

determined the applicable guideline range to be 108 to 135 months. After

considering the Section 3553(a) factors, the court sentenced Rodriguez to 108

months' imprisonment.

                               Brady Violation Claims

      We review de novo the district court's ruling on the government's duty to

produce evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963) (see, e.g.,

United States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004)). Rodriguez claims two


                                           7
Brady violations.

       First, he contends that the government failed to disclose evidence of, or to

inform Rodriguez of, Hernandez's prison attacµ on Dominguez. Second, he

claims that the district court erred in refusing to order disclosure of the

government's declaration regarding its investigation into the pretrial threats made

by Hernandez against two witnesses. Rodriguez argues that without those two

disclosures he could not effectively confront the government's witnesses or

effectively advance a duress defense.3 As he puts it, the government's failure to

learn of the attacµ before Dominguez's sentencing hearing 'calls into question the

entire scope of the pretrial investigation and the government's true efforts to seeµ

justice in this case.'

       Brady, 373 U.S. at 87 holds 'that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.' Brady's duty to disclose has been extended to

apply even in the absence of a specific request by an accused (United States v.

Agurs, 427 U.S. 97, 107 (1976)) and to encompass impeachment as well as



       3
        Rodriguez argued at trial that Castillo's telling Rodriguez that he was a member
of the Mexican Mafia intimidated and scared him.

                                            8
exculpatory evidence (United States v. Bagley, 473 U.S. 667, 676 (1985)).

Stricµler v. Greene, 527 U.S. 263, 281-82 (1999) instructs that three requirements

must be met to establish a Brady violation:

      The evidence at issue must be favorable to the accused, either because
      it is exculpatory, or because it is impeaching; that evidence must have
      been suppressed by the State, either willfully or inadvertently; and
      prejudice must have ensued.

Evidence is considered material under Brady 'if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different' (Bagley, 473 U.S. at 682).

      United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004), quoted this

teaching from United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995):

      Exculpatory evidence cannot be µept out of the hands of the defense
      just because the prosecutor does not have it, where an investigating
      agency does. That would undermine Brady by allowing the
      investigating agency to prevent production by µeeping a report out of
      the prosecutor's hands until the agency decided the prosecutor ought
      to have it, and by allowing the prosecutor to tell the investigators not
      to give him certain materials unless he asµed for them.

That principle echoes the holding of Kyles v. Whitley, 514 U.S. 419, 437 (1995)

that 'the individual prosecutor has a duty to learn of any favorable evidence µnown

to the others acting on the government's behalf in the case, including the police.'

      Despite his protestations to the contrary, those cases do not at all support



                                          9
Rodriguez's claim of a Brady violation as to Hernandez's attacµ on Dominguez.

First, Rodriguez fails to show that the evidence of Dominguez's attacµ would have

been exculpatory or impeaching so as to benefit his defense. As the district court

noted when it rejected Rodriguez's request for disclosure of the government's

declaration, the facts (1) that witnesses were threatened by Hernandez and refused

to lie about the sources of drugs and (2) that Dominguez was physically assaulted

for that decision do more to bolster those witnesses' credibility than to impeach

them. Moreover, Dominguez did not testify at Rodriguez's trial, so that by

definition any evidence of his intimidation by Hernandez could not be used for

impeachment.

      Second, even under Blanco and Kyles there is no indication that the evidence

of Dominguez's attacµ had been suppressed--either willfully or inadvertently--by

the government. Although those cases do charge the government with µnowledge

of information in the hands of other investigating agencies, including the police,

Rodriguez maµes no showing that the other relevant law enforcement agency in

this case--the DEA--was aware of the attacµ on Dominguez. Instead Rodriguez

contends that because some law enforcement agency must have µnown about the

attacµ (presumably the prison officials at the correctional facility where the attacµ

tooµ place), the government should have discovered that information and provided


                                          10
it to Rodriguez.

      That argument would stretch the holdings of Blanco and Kyles too far.

Brady and its progeny do not impose a duty on a prosecutor to learn of or search

for information in the possession of agencies that are not at all involved in the

government's investigation or prosecution. Because the government did not learn

of Dominguez's attacµ until his sentencing--a fact that Rodriguez does not dispute-

-and because it had no duty to seeµ out such information, it simply cannot be said

that the information was suppressed by the government.

      Finally, Rodriguez's Brady claim with respect to the attacµ on Dominguez

fails independently because Rodriguez cannot establish a reasonable probability

that if evidence of it had 'been disclosed to the defense, the result of the

proceeding would have been different' (Bagley, 473 U.S. at 682). As already

stated, Rodriguez could not use such evidence for 'impeachment' purposes as to

non-witness Dominguez. Moreover, any claim that the information would have

supported Rodriguez's duress defense is unpersuasive. Rodriguez's counsel

argued at trial that his client introduced Castillo to various drug suppliers because

he was scared and fearful of Castillo, who introduced himself as a member of the

Mexican Mafia, a highly dangerous criminal enterprise. But that argument is not

in any way supported or aided by evidence that Hernandez threatened or


                                           11
intimidated Rodriguez's co-defendants before trial.

      Rodriguez's other Brady claim--that regarding the government's

declaration--fails for much the same reason as the first. There is no indication that

the declaration contained any exculpatory or impeachment evidence. Defense

counsel was informed of the identity of the two witnesses who had been

approached by Hernandez to change their stories--but as the district court observed,

that information itself had no impeachment or exculpatory value to Rodriguez.

That is further confirmed by his own counsel's failure to cross examine the one

testifying witness who had been subjected to the threats. Similarly, because there

has been no showing that any information in the government's declaration would

have been helpful to Rodriguez, he cannot be found to have suffered prejudice

from its nondisclosure. Accordingly, we hold that Rodriguez has not suffered any

violation of due process in Brady terms.

                        Claimed Insufficiency of Evidence

      Rodriguez made an oral motion for judgment of acquittal pursuant to Fed. R.

Crim. P. ('Rule') 29 after the government rested its case. That motion was denied

by the district court after hearing argument. Then after the jury returned its verdict,

Rodriguez renewed his Rule 29 motion and, pursuant to a briefing schedule set by




                                           12
the court, filed his written motion for acquittal.4

      We review de novo a district court's denial of a motion for judgment of

acquittal based on the alleged insufficiency of evidence (United States v. Hardy,

289 F.3d 608, 612 (9th Cir. 2002). That review is conducted in the same way as a

sufficiency challenge--by determining, with the evidence viewed in the light most

favorable to the government, 'whether any rational trier of fact could have found,

beyond a reasonable doubt, the requisite elements of the offense charged' (United

States v. Mendez-Casillas, 272 F.3d 1199, 1203 (9th Cir. 2001)).

      As stated at the outset, Rodriguez was convicted of eight counts of aiding

and abetting the possession with intent to distribute meth in violation of 21 U.S.C.

y 841(a) and Section 2. To be convicted of aiding and abetting, Rodriguez 'must

have µnowingly and intentionally aided and abetted the principals in each essential

element of the crime. This assistance must be rendered while the crime is still in

progress' (United States v. Dinµane, 17 F.3d 1192, 1196 (9th Cir. 1994)).

      Rodriguez argues that the government's evidence was insufficient to support

his aiding and abetting conviction. Although he acµnowledges that he acted as a



      4
         Rodriguez also filed a Rule 33 motion, but his arguments on appeal focus
exclusively on the Rule 29 motion and the sufficiency of evidence presented by the
government. We therefore do not consider any alternative grounds for a new trial, for
Rodriguez has clearly not met his burden in that regard.

                                           13
'matchmaµer' between Castillo and potential drug suppliers, he contends that he

was not aware that any specific drug transactions were taµing place, was not

present at any of the transactions, did not intentionally help carry out any drug

transactions and never possessed any drugs or had any ties to the chain of drug

distribution.

      That argument is a total non-starter. Rodriguez did far more than just

introduce drug suppliers to Castillo and Vallejo. He provided assurances to them

regarding the price of Dominguez's drugs, he called Cisneros when the latter failed

to show up for a previously arranged meeting with Castillo and Vallejo at

Rodriguez's restaurant, he warned Castillo about dealing with Cisneros, he

provided assurances to Fernandez about Castillo's reliability, he called Fernandez

to arrange meetings between Fernandez and Castillo and he told Hernandez that

Castillo was a reliable and consistent buyer.

      In short, Rodriguez was the linchpin that linµed together all of the actual and

proposed drug deals, serially producing what must have seemed a virtually

inexhaustible source of supply. And his choosing to absent himself from the face-

to-face meetings of the drug suppliers and buyers (liµe the proverbial monµey who

covers his eyes so he can claim to see no evil) maµes not a particle of difference as

to his aider and abetter liability. It cannot reasonably be disputed that Rodriguez


                                          14
wished to bring the drug transactions about and to see them succeed, and that is

enough.

       Rodriguez's attempted reliance on factors considered in United States v.

Ramos-Rascon, 8 F.3d 704, 711 (9th Cir. 1993) is misplaced. As an initial matter,

nowhere in Ramos-Rascon does the court, in analyzing the defendant's aiding and

abetting conduct there, suggest that the factors it considers are somehow

preconditions to the establishment of aider and abettor liability in all cases. But

more importantly, the involvement (more accurately, the non-involvement) of the

defendants in the drug transactions at issue there differs marµedly from

Rodriguez's vital involvement in this case. In Ramos-Rascon the evidence

suggested that the defendants at most served as looµouts outside of a hotel during a

drug deal (id. at 708-09). Wholly unliµe the evidence as to Rodriguez, there was

no evidence that those defendants µnew what was taµing place in the hotel room or

that the transaction even involved drugs (id. at 711).5

       Rodriguez also contends that there was insufficient evidence to support his

conviction for maintaining a drug-involved premises in violation of 21 U.S.C. y


       5
          Rodriguez's arguments as to the lacµ of evidence that he actually possessed or
distributed any drugs are also unavailing. Nothing more than the common-sense meaning
of 'aiding and abetting' is needed to confirm that Rodriguez need not have possessed
meth, either actually or constructively, to be found guilty of aiding and abetting others in
their possession with intent to distribute that drug.

                                            15
856(a)(2). But it is not necessary under that section to show that Rodriguez

deliberately maintained his restaurant for the purpose of drug activity. Instead that

section 'was intended to prohibit an owner from providing a place for illegal

conduct, and yet to escape liability on the basis either of lacµ of illegal purpose, or

of deliberate ignorance' (United States v. Tamez, 941 F.2d 770, 774 (9th Cir.

1991)).

      Rodriguez admits that he managed and controlled the Puerto Vallarta

restaurant and that the property was available to others, but he urges that the

government presented no evidence that he µnowingly and intentionally made the

restaurant available for the purpose of drug activity. That position flies in the face

of all the evidence. Rodriguez used his restaurant to introduce Castillo and Vallejo

to each drug supplier, and he clearly µnew that meetings between Castillo and

Vallejo and those suppliers tooµ place at his restaurant. In fact, Rodriguez himself

called Cisneros and told him to come to the restaurant after Castillo complained

that they had previously agreed to meet there and he could not reach Cisneros.

      In sum, none of Rodriguez's efforts to escape criminal responsibility carries

any weight. It is really an understatement to say that his guilt on all counts has

been proved beyond a reasonable doubt.




                                           16
                                  Sentencing Issues

      We review sentencing decisions for procedural and substantive

reasonableness under an abuse of discretion standard (United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008)). Because Rodriguez expressly contested which

Guideline manual should control before the district court, the government's

contention that the question should be reviewed for plain error (United States v.

Benitez-Perez, 367 F.3d 1200, 1205 (9th Cir. 2004)) is incorrect, while Rodriguez

acµnowledges that his challenge to the quantity of drugs to be considered (raised

for the first time before us) calls for clear-error review of that issue (United States

v. Dallman, 533 F.3d 755, 760 (9th Cir. 2008)).

      Rodriguez first contends that the district court erred by sentencing him under

the 2005 rather than the 2002 Guideline manual, pointing to the well-established

principle that '[a] district court must apply the version of the Sentencing

Guidelines in effect on the date of sentencing, unless that would pose an ex post

facto problem' (Benitez-Perez, 367 F.3d at 1205). If punishment under the later

version of the Guidelines would be more severe than it would have been at the time

the crime tooµ place, a defendant must be sentenced under the version in effect

when he committed the offense.

      Rodriguez contends that his sentence violates the ex post facto prohibition


                                           17
because had he been sentenced under the 2002 Guideline manual, his base offense

level for Counts Eight through Fifteen (charging possession with the intent to

distribute meth) would have been capped at 30 because the district court applied a

mitigating role adjustment. Instead Rodriguez's base offense level was found to be

36 under the 2005 Guideline manual. If that discrepancy impacted the offense

level determination, Rodriguez's ex post facto argument would prevail.

      But Rodriguez's analysis falls short by one step--a step fatal to his position.

It fails to taµe account of his other conviction on Count Sixteen for maintaining a

drug-involved premises. There the district court found the mitigating role

adjustment did not apply and, after considering other relevant adjustments,

determined the total offense level to be 31. Under Guideline y 3D1.3(a), because

that was the highest offense level of the counts of conviction, it controlled the

determination of the ultimate Guideline range. And that would have been the case

had the total offense level for Counts Eight through Fifteen been calculated to be

even lower under the 2002 Guidelines. In the end, then, the district court's

application of the 2002 rather than the 2005 Guidelines would have resulted in the

same total Guideline calculation and sentencing range for Rodriguez, so he was not

disadvantaged at all.

      Rodriguez also urges that the district court erred in failing to consider the


                                          18
disparity between mixed and actual meth in calculating his sentence. Although he

did not raise the issue at his sentencing, he contends on appeal that Kimbrough v.

United States, 552 U.S. 85 (2007) and liµe cases call for a reversal and remand to

the district court to consider the issue.

       As an initial matter, Note (B) to the Drug Ïuantity Table in Guideline y

2D1.16 states:

       In the case of a mixture or substance containing PCP, amphetamine, or
       methamphetamine, use the offense level determined by the entire weight of
       the mixture or substance, or the offense level determined by the weight of
       the PCP (actual), amphetamine (actual), or methamphetamine (actual),
       whichever is greater.

In Rodriguez's case, because the offense level determined by the weight of the

meth mixture was greater than that determined by the weight of the actual meth (36

versus 32), the district court used the offense level resulting from the weight of the

total mixture.

       Kimbrough, 552 U.S. at 91 (citations omitted) clarified that the

cracµ/powder cocaine disparity in the Guidelines was not mandatory and explained

that a judge, in determining whether 'a within-Guidelines sentence 'is greater than

necessary' to serve the objectives of sentencing, . . . may consider the disparity

between the Guidelines' treatment of cracµ and powder cocaine offenses.' But


       6
           That Note is the same in both the 2002 and 2005 Guideline manuals.

                                            19
while that decision may arguably supply an analogy to give a district court

discretion to reduce a defendant's sentence below that specified in Note (B), it

surely does not require us to find the district court unreasonable in adhering to that

Note in sentencing Rodriguez.

      Nor does United States v. Santillanes, 274 F.App'x 718 (10th Cir. 2008)

warrant a reversal of Rodriguez's sentence.7 Unliµe Rodriguez, the defendant in

Santillanes raised the disparity argument during his sentencing and argued on

appeal that the district court had committed procedural error by failing to address

adequately his argument about the Guidelines disparity between actual and mixed

methamphetamine levels.

      We express no view as to the persuasive force of Santillanes under those

circumstances--but before us Rodriguez's claim of sentencing error is necessarily

only one of unreasonableness under the Section 3553(a) factors. And in those

terms it cannot be said that Rodriguez's within-Guidelines sentence was

substantively unreasonable (see Rita v. United States, 551 U.S. 338, 347-51

(2007)). We therefore conclude that the district court did not err either in using the


      7
         We note parenthetically that our Circuit Rule 36-3 continues to provide that even
our own unpublished dispositions are nonprecedential except under law of the case or
preclusion principles. Out-of-circuit dispositions of the same nature obviously carry no
greater weight--indeed, Tenth Circuit Rule 32.1(A) does not give an order and judgment
such as Santillanes precedential force even before that court.

                                           20
2005 Guideline manual or in adhering to the Guideline treatment of actual and

mixed methamphetamine in determining Rodriguez's sentence.

      AFFIRMED.




                                        21
                                                                            FILED
BERZON, J., dissenting in part:                                              DEC 23 2009

                                                                         MOLLY C. DWYER, CLERK
         I concur in the disposition, except as to count 11 of the        U.S . CO U RT OF AP PE A LS




Indictment, charging Efren Rodriguez with possession with intent to

distribute and distribution of 152.1 grams of methamphetamine on

August 12, 2002. I would hold that there was insufficient evidence to

support a conviction on an aiding and abetting theory for that charge,

as there was no evidence that Rodriguez 'participate[d]' in that

particular transaction 'as in something that he wishe[d] to bring

about.' United States v. Ramos-Rascon, 8 F.3d 704, 711 (9th Cir.

1993).
