                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 05 2013

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-10103

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00070-RCJ-
                                                 WGC-2
  v.

RODRIGO RODRIGUEZ-BECERRA,                       MEMORANDUM *
AKA Buki,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10146

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00070-RCJ-
                                                 WGC-1
  v.

HUGO MORENO-SANABRIA,

              Defendant - Appellant.



                  Appeal from the United States District Court
                            for the District of Nevada
                Robert Clive Jones, Chief District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted February 15, 2013
                            San Francisco, California

Before: SCHROEDER and MURGUIA, Circuit Judges, and MCNAMEE, Senior
District Judge.**

      After a joint trial, a jury found Rodrigo Rodriguez-Becerra and Hugo

Moreno-Sanabria guilty of conspiring to sell fifty grams or more of

methamphetamine in violation of 21 U.S.C. § 846; Rodriguez-Becerra guilty of

distributing five grams or more of methamphetamine in violation of 21 U.S.C. §

841(a); and Moreno-Sanabria guilty of possessing fifty grams or more of

methamphetamine with the intent to distribute it in violation of 21 U.S.C. § 841(a).

Both men appeal their convictions, and Rodriguez-Becerra appeals his sentence.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we

affirm.

      Admission of the Unindicted Co-conspirator’s Plea Agreement

      At trial, in contravention of Fed. R. Evid. 801(d)(2)(E) and the

Confrontation Clause, the government introduced into evidence the plea agreement

of an unindicted co-conspirator. Because Defendants failed to make the correct




          **
              The Honorable Stephen M. McNamee, Senior District Judge for the
U.S. District Court for the District of Arizona, sitting by designation.

                                         2
objection to admission of the plea agreement, we review for plain error. United

States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990); see also United States

v. Blandin, 435 F.3d 1191, 1195 (9th Cir. 2006) (Confrontation Clause violations

are subject to plain error review). Defendants cannot meet their respective burdens

on plain error review of establishing a reasonable probability that the outcome of

the trial would have been different had the plea agreement not been admitted.

United States v. Sanders, 421 F.3d 1044, 1051 (9th Cir. 2005).

      To prove the conspiracy charge under 21 U.S.C. § 846, the government had

to prove Defendants (1) were part of an agreement to accomplish an objective

made criminal by 21 U.S.C. § 841(a) and (2) intended to commit the underlying

offense. United States v. Suarez, 682 F.3d 1214, 1219 (9th Cir. 2012). The

government presented significant evidence supporting this charge. The SWAT

team found eighty grams of methamphetamine in a safe along with other indicia of

drug sales in the apartment Defendants shared; both Defendants were involved in

distinct methamphetamine sales connected to the apartment; and both Defendants

indicated to others they did not work alone. Indeed, upon being arrested, Moreno-

Sanabria told the authorities he was selling the methamphetamine in the safe as

part of an agreement with another person.




                                          3
      Ample evidence also supported Rodriguez-Becerra’s distribution conviction

under 21 U.S.C. § 841(a). The jury heard audio recordings from one week prior to

the charged transaction of Rodriguez-Becerra discussing methamphetamine sales.

The jury then saw and heard the actual transaction by video and audio recording, in

addition to testimony from an informant who participated in the transaction.

      The evidence also strongly supported Moreno-Sanabria’s conviction for

knowingly possessing with the intent to distribute fifty grams or more of

methamphetamine in violation of 21 U.S.C. § 841(a). On the day he was arrested,

Moreno-Sanabria was found sleeping in the room of the apartment with the safe of

methamphetamine and other indicia of drug sales, and he later told DEA agents

that his fingerprints would be all over the inside of the safe because he was selling

the methamphetamine therein.

      Accordingly, because Defendants’ convictions are supported by such

convincing evidence, they cannot demonstrate that admission of the unindicted co-

conspirator’s plea agreement constituted a plain error.

      Use Immunity for the Unindicted Co-Conspirator

      We reject Moreno-Sanabria’s argument that the district court erred by failing

to compel the government to grant the unindicted co-conspirator use immunity,

because the government neither intentionally caused the unindicted co-conspirator


                                          4
to plead the Fifth Amendment at trial nor granted use immunity to its own

witnesses only to deny use immunity to the unindicted co-conspirator. See United

States v. Straub, 538 F.3d 1147, 1162 (9th Cir. 2008).

       Disclosure of the Confidential Informant’s Identity

       The district court did not abuse its discretion in denying Defendants’ request

for disclosure of the identity of CS-1, a confidential informant, because Defendants

failed to demonstrate this information would have been “‘relevant and helpful to

[their] defense . . . or [was] essential to a fair determination of [their] cause.’”

United States v. Kim, 577 F.2d 473, 478 (9th Cir. 1978) (quoting Roviaro v. United

States, 353 U.S. 53, 60–61 (1957)).

       CS-1’s only evidentiary role in the case was (1) providing the initial tip that

precipitated the investigation; (2) making a controlled buy from Rodriguez-

Becerra; and (3) obtaining Moreno-Sanabria’s phone number. Introduction of CS-

1’s initial tip into evidence did not violate the Confrontation Clause. See United

States v. Wahchumwah, 704 F.3d 606, 614 (9th Cir. 2012) (Confrontation Clause

does not bar the introduction of tips offered to explain why an investigation

began). Moreover, testimony concerning the March 2, 2011, controlled buy and

the acquisition of Moreno-Sanabria’s phone number on March 28, 2011, did not

reference any statement by CS-1. Thus, the district court did not abuse its


                                            5
discretion in finding Defendants failed to clearly articulate any legitimate reason to

disclose CS-1’s identity; CS-1’s “testimony” had not, as Defendants contended,

been introduced at trial.

      Rodriguez-Becerra’s Sentence

      The district court did not abuse its discretion in sentencing Rodriguez-

Becerra to 132 months imprisonment, because that sentence is not “‘illogical,

implausible, or without support in inferences that may be drawn from the facts in

the record.’” United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010)

(quoting United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).

The district court considered the appropriate § 3553(a) factors, and logically and

plausibly concluded Rodriguez-Becerra was a “major player” in the

methamphetamine conspiracy operating out of the apartment: Rodriguez-Becerra

paid the apartment’s rent and utility bills, made at least two drug sales out of the

apartment, and played a key role in obtaining the methamphetamine for later sale.

      AFFIRMED.




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