                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 06 2013

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



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 11-50421

              Plaintiff - Appellee,              D.C. No. 3:11-cr-01447-LAB-2

  v.
                                                 MEMORANDUM*
PABLO OSCAR ANZALDO-
CONTRERAS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50052

              Plaintiff - Appellee,              D.C. No. 3:11-cr-01447-LAB-1

  v.

FERNANDO JAVIER ALARID,

              Defendant - Appellant.


                   Appeals from the United States District Court
                      for the Southern District of California
                    Larry A. Burns, District Judge, Presiding




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                           Submitted November 4, 2013**
                               Pasadena, California

Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.

      Defendants Pablo Oscar Anzaldo-Contreras and Fernando Javier Alarid

appeal their convictions for conspiracy to import marijuana, 21 U.S.C. §§ 952,

960, 963; conspiracy to distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1); and

possession of marijuana with intent to distribute and aiding and abetting, 21 U.S.C.

§ 841(a)(1), 18 U.S.C. § 2, as well as the length of their sentences. We affirm.

      1. Sufficient evidence supported Defendants’ convictions. We review de

novo for sufficiency of the evidence, United States v. Sullivan, 522 F.3d 967, 974

(9th Cir. 2008) (per curiam), and reverse only if the evidence, viewed in the light

most favorable to the prosecution, is insufficient to allow "any rational trier of fact

[to find] the essential elements of the crime beyond a reasonable doubt," Jackson v.

Virginia, 443 U.S. 307, 319 (1979). The testimony of a co-conspirator is sufficient

to sustain a conviction so long as that testimony is not "incredible or unsubstantial

on its face." United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986). Because

the co-conspirator testimony against Defendants was not incredible on its face and




        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
                                           2
was, in fact, partially corroborated by independent evidence, we must affirm.

United States v. Yossunthorn, 167 F.3d 1267, 1270 (9th Cir. 1999).

      2. The district court did not abuse its discretion, United States v. Simtob,

485 F.3d 1058, 1064 (9th Cir. 2007), when it responded to two jurors’ inquiries

about safety and then allowed them to remain on the jury.1 "When a source

presents the court with a colorable claim of juror bias, the court must make some

inquiry of the juror, whether through an in camera hearing or otherwise, to

determine whether the allegedly affected juror is incapable of performing the

juror’s functions impartially." Id. (internal quotation marks omitted). Even

assuming a "colorable claim of juror bias,"2 the court followed proper procedures.

The district judge, with counsel for both parties present, conducted individual in

camera interviews with each juror who expressed concerns. He allowed the jurors

to stay only after he was satisfied that each could serve impartially. At


      1
         The government notes that Defendants failed to object to the continued
presence of the jurors at trial, even though they were aware of the jurors’ concerns
at the time, and so review is only for plain error. United States v. Olano, 507 U.S.
725, 731 (1993). Because we would reach the same decision under either standard,
we use the more lenient standard.
      2
        It is not clear that there was an initial "colorable claim of juror bias."
Unlike the juror in Simtob, who felt threatened by the defendant because he
allegedly "eye-ball[ed]" the juror, 485 F.3d at 1060, the jurors here expressed only
generalized concern about being involved in a case in which enormous quantities
of drugs were at issue.
                                          3
Defendants’ request, the judge also addressed the jury at large. There is no

evidence that jurors’ initial concerns about serving on a high-profile case deprived

Defendants of the right to an impartial jury.

      3. Defendant Anzaldo-Contreras’ 235-month sentence was not procedurally

erroneous or substantively unreasonable. United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (en banc). We review sentencing decisions for abuse of

discretion.3 Id. The district court properly calculated the Guidelines, explicitly

recognized that they were advisory, properly considered the 18 U.S.C. § 3553(a)

factors and the recommendations of the parties, id. at 991, adequately explained the

chosen sentence based on that analysis and the facts in the record, and committed

no other procedural error, Gall v. United States, 552 U.S. 38, 51 (2007). The court

considered the disparity between Anzaldo-Contreras’ sentence and those of co-

defendants, 18 U.S.C. § 3553(a)(6), and permissibly determined that the

differences were justified by the co-defendants’ cooperation with the government



      3
         Although Defendants argue only substantive unreasonableness, two of
their objections (insufficient consideration of the government’s recommendation,
reliance on erroneous facts) appear to assert procedural error. The government
notes that Defendants failed to object to the district court’s procedures at trial, and
so we should review for plain error. United States v. Valencia-Barragan, 608 F.3d
1103, 1108 (9th Cir. 2010). Again, because we reach the same result under any
standard, we use the standard more favorable to Defendants and review for abuse
of discretion.
                                           4
and Anzaldo-Contreras’ continued refusal to take responsibility during sentencing,

United States v. Smith, 424 F.3d 992, 1016-17 (9th Cir. 2005). The 235-month

sentence—at the low end of the Guidelines’ recommended range—was not

substantively unreasonable in light of the totality of the circumstances, the

deference due the district judge’s individualized determination, and the 18 U.S.C.

§ 3553(a) factors. Carty, 520 F.3d at 995.

      4. Defendant Alarid’s sentence was not substantively unreasonable. We

again review for abuse of discretion. Carty, 520 F.3d at 993. The range

recommended under the Guildelines was 360 months to life because of the amount

of marijuana, Alarid’s managerial role in the conspiracy, and his prior criminal

history. The district court departed downward to 300 months because of Alarid’s

brain tumor. Alarid points to no factor under 18 U.S.C. § 3553(a) that supports his

claim of unreasonableness, United States v. Booker, 543 U.S. 220, 261-62 (2005),

and in fact cites only cases in which this court has upheld the district court’s

downward departure for health reasons. A further downward departure premised

on Alarid’s health—a factor that was already properly considered by the district

court—is not required.

      AFFIRMED.




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