                                                                               FILED
                           NOT FOR PUBLICATION                                 APR 04 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10174

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00905-DCB-
                                                 JJM-5
  v.

ABELARDO GRAJEDA-ENCINAS,                        MEMORANDUM*
AKA Abelardo Grajeda,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                      Argued and Submitted March 14, 2012
                              Berkeley, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.

       Abelardo Grajeca-Encinas appeals his jury conviction and sentence for

conspiracy to possess with intent to distribute 100 kilograms of cocaine and

possession with intent to distribute one kilogram of cocaine. Because the parties

are familiar with the factual and procedural history of this case, we repeat only


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
those facts necessary to resolve the issues raised on appeal. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

      Grajeda-Encinas raises a claim of sentencing entrapment, citing U.S.S.G.

§ 2D1.1 Application Note 12 (“Note 12”). Grajeda-Encinas failed to cite to or

object under Note 12 at sentencing, although he did file a “Motion to Reconsider

Sentence” and argued that Note 12 supported a much lower criminal history given

the amount of “fake cocaine” seized during the government sting operation. That

motion was denied without explanation. Because Grajeda-Encinas did not raise his

claim before the district court at the time of or prior to sentencing, it is forfeited,

and we review for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 732 (1993) (plain error standard permits an appellate court to reverse if

there was (a) an error, (b) that was plain, and (c) that affected substantial rights).

      “Sentencing entrapment or ‘sentence factor manipulation’ occurs when ‘a

defendant, although predisposed to commit a minor or lesser offense, is entrapped

in[to] committing a greater offense subject to greater punishment.” United States

v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). When sentencing entrapment

occurs, “the amount of drugs used in calculating the defendant’s sentence should

be reduced by the amount that ‘flows from the entrapment.’” United States v.

Briggs, 623 F.3d 724, 729 (9th Cir. 2010). Under Note 12, if a defendant makes a


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proper showing that he “was not reasonably capable of providing . . . the

agreed-upon quantity,” the court must exclude the quantity that he establishes he

was not reasonably capable of providing. U.S.S.G. § 2D1.1 App. n.12. Finally,

under our circuit precedent, “Application Notes 12 and 17 [now incorporated into

Note 12] clearly require the district court to determine whether sentencing

entrapment has occurred. Under Note 12, the district court ‘shall exclude’ from the

calculation the amount of drugs which flow from sentencing entrapment.” United

States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995).

      At sentencing, the district court rejected a similar argument made by a co-

defendant relating to sentencing entrapment because the court concluded that any

relief would require the court to invalidate the jury’s verdict. That conclusion was

erroneous, at odds with our precedent, and affected Grajeda-Encinas’s substantial

rights. The ultimate determination of sentencing entrapment is within the province

of the sentencing judge, and the mere fact of conviction does not trump this

obligation. Under Naranjo, Grajeda-Encinas’s inability to produce 100 kilograms

of cocaine—instead producing two kilograms of cocaine and fifty-nine kilograms

of building plaster—raises a significant issue. We vacate Grajeda-Encinas’s

sentence and remand for resentencing. We take no position on whether relief

should be granted, and, on remand, Grajeda-Encinas has the burden of proving


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sentencing entrapment by a preponderance of the evidence. Naranjo, 52 F.3d at

250.

       Grajeda-Encinas also contends that the district court violated his rights under

the Speedy Trial Act, 18 U.S.C. § 3161 et seq., by granting two motions to

continue. Although Grajeda-Encinas objected to both continuances, he did not

move to dismiss the indictment on that ground prior to trial, and his claim is thus

waived. 18 U.S.C. § 3162(a)(2); United States v. Rodriguez-Preciado, 399 F.3d

1118, 1132 (9th Cir. 2005) (holding that defendant waived his Speedy Trial Act

claim by failing to move for dismissal before trial), amended on other grounds,

416 F.3d 939 (9th Cir. 2005).

       Sufficient evidence supported Grajeda-Encinas’s conviction for conspiracy

to possess with intent to distribute 100 kilograms of cocaine. To establish a drug

conspiracy in violation of 21 U.S.C. § 846, the government must establish “(1) an

agreement to accomplish an illegal objective, and (2) the intent to commit the

underlying offense.” United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th

Cir. 2001). Once a conspiracy is established, only a slight connection to the

conspiracy is necessary to support a conviction. Id. Though Grajeda-Encinas now

argues that he was merely the driver for a co-defendant in exchange for being able

to use his car, the jury was entitled to reject Grajeda-Encinas’s version of the


                                          4
events. See United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc)

(“when faced with a record of historical facts that supports conflicting inferences a

reviewing court must presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution” (internal quotation marks and

citation omitted)). Viewed in the light most favorable to the prosecution, the

evidence was sufficient to establish Grajeda-Encina’s involvement in the

conspiracy.

      There was also sufficient evidence to support Grajeda-Encina’s conviction

for possession with intent to distribute one kilogram of cocaine. “Possession may

be either actual or constructive, with the latter concept encompassing a defendant’s

power to exercise dominion and control over the narcotics as well as his or her

participation in a ‘joint venture’ to possess a controlled substance.” United States

v. Delgado, 357 F.3d 1061, 1065 (9th Cir. 2004) (citation omitted). A defendant

also may be guilty of possession if he aids and abets another. Id. Grajeda-Encinas

indicated that he was “the boss” and that his relatives were the suppliers of the

cocaine. On at least one occasion, he was observed giving an authoritative nod to a

co-conspirator regarding the amount of cocaine in their possession. The jury was




                                          5
entitled to conclude that he exercised dominion or control over the cocaine or that

he participated in a “joint venture” to possess the drugs.

       Grajeda-Encinas also challenges the district court’s failure to apply a minor

role reduction pursuant to U.S.S.G. § 3B1.2(b). Whether a defendant is a minor or

minimal participant is reviewed for clear error. United States v. Cantrell, 433 F.3d

1269, 1282 (9th Cir. 2006). The defendant bears the burden of proving that he is

entitled to a downward adjustment. Id. Because Grajeda-Encinas claimed to be

“the boss” before any dealings began, was observed nodding to a co-conspirator as

if he were the boss, dropped off and picked up participants during the one kilogram

deal, and was present at the final deal which precipitated the defendants’ arrest, the

district court did not clearly err in denying a minor participant reduction.

      Finally, because we remand for resentencing on the issue of sentencing

entrapment, we need not address whether the district court erred by failing to sua

sponte consider Grajeda-Encinas’s eligibility for safety valve relief. Though we

express no opinion on whether Grajeda-Encinas is entitled to such relief, we note

that “[a conviction] by a jury . . . does not necessarily foreclose relief pursuant to

§ 3553(f), even if the defendant continues through and beyond sentencing to

maintain his innocence as to one or more of the elements of the underlying

offense.” United States v. Sherpa, 110 F.3d 656, 660 (9th Cir. 1996). On remand,


                                           6
the district court may consider Grajeda-Encina’s eligibility for relief under the

safety valve provision.

      REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.




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