                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 16 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JESSE JOSEPH VASQUEZ,                            No. 09-16903

               Petitioner - Appellant,           D.C. No. 2:08-cv-00685-JAM

  v.
                                                 MEMORANDUM *
JAMES A. YATES, Warden, et al.,

               Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                               Submitted March 8, 2011 **

Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.

       California state prisoner Jesse Joseph Vasquez appeals from the district

court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.

       Vasquez contends that the state court violated his due process rights by

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
allowing his conspiracy sentence to be enhanced on the basis of a jury drug-weight

finding that did not require Vasquez’s knowledge of the specific drug weight

involved.

      Under California law, drug conspiracy sentences may be enhanced on the

basis of weight allegations found true by a jury without a showing of the

defendant’s actual knowledge of the quantity of drugs involved, as long as the jury

is instructed on the necessity of finding the defendant’s “substantial involvement”

in the planning, direction, execution, or financing of the conspiracy and its

objective and makes a finding that the weight allegation is true. See Cal. Health &

Safety Code § 11370.4(a)(5) (West 2002); People v. Chevalier, 70 Cal. Rptr. 2d

482, 485 (Cal. Ct. App. 1997). Neither this California sentencing provision nor the

state court’s decision affirming its application in this case is contrary to or an

unreasonable application of any clearly established Supreme Court precedent. See

28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 409 (2000). Contrary to

Vasquez’s assertion, nothing in Pinkerton v. United States, 328 U.S. 640 (1946),

requires a contrary result.

      AFFIRMED.




                                            2                                        09-16903
