                                                                            FILED
                                                                             FEB 23 2017
                           NOT FOR PUBLICATION
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10212

              Plaintiff - Appellee,              D.C. No. 1:12-CR-00234-LJO

 v.                                              MEMORANDUM*


 SAUL MORALES,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                    Argued and Submitted September 13, 2016
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** District Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
      Saul Morales appeals his convictions and sentence, following a jury trial, for

manufacturing, possessing with intent to distribute, and aiding and abetting the

manufacture and possession of marijuana; conspiring to manufacture, distribute,

and possess with intent to distribute marijuana; and maintaining drug-involved

premises and aiding and abetting, in violation of the federal Controlled Substances

Act (“CSA”), 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, 856(a)(1), and the federal

aiding and abetting statute, 18 U.S.C. § 2. We affirm Morales’s conviction. We

vacate the sentence because the two-level sentencing enhancement for possession

of a dangerous weapon in connection with the offense should not have been

applied.

1.    The district court’s jury instruction regarding aiding and abetting was not

erroneous. The district court instructed that to find Morales guilty under an aiding

and abetting theory, the jury must conclude that he “knowingly and intentionally

aided, counseled, commanded, induced or procured that person to commit each

element of [the crime charged],” that “the defendant acted before the crime was

completed,” and that “[t]he evidence [showed] beyond a reasonable doubt that the

defendant acted with the knowledge and intention of helping that person commit

[the crime charged].” The instruction was consistent with Ninth Circuit case law

regarding aiding and abetting. See, e.g., United States v. Goldtooth, 754 F.3d 763,

                                          2
768 (9th Cir. 2014); see also United States v. Sayetsitty, 107 F.3d 1405, 1411-12

(9th Cir. 1997). The district court’s instruction accurately conveyed the required

intent element.

2.    The district court’s jury instruction regarding conspiracy was not erroneous.

To establish a drug conspiracy, the government must prove “(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).

Proof that “the defendant knew the agreement had an unlawful objective” is not

required. See Cheek v. United States, 498 U.S. 192, 199 (1991); United States v.

Ching Tang Lo, 447 F.3d 1212, 1230 n.13 (9th Cir. 2006) (citing Staples v. United

States, 511 U.S. 600, 622 n.3 (1994) (Ginsburg, J., concurring)).

3.    The district court did not abuse its discretion in granting the government’s

motion in limine to exclude evidence regarding the legality under state and local

law of the cultivation of small amounts of marijuana for medical purposes. The

excluded evidence was not relevant to Morales’s defense, as neither medical

necessity nor mistake of law constitutes a defense to federal drug charges. United

States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 490-91, 492 n.5 (2001);

Lo, 447 F.3d at 1230 n.13. Moreover, Morales was permitted to introduce

evidence regarding so-called “identification documents” posted at the site of each

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marijuana plot, for the limited purpose of demonstrating that others exercised

control over the plots. He was also permitted to cross-examine witnesses regarding

whether Tulare County regulations required fencing at marijuana plots, to refute

the government’s assertion that the fencing served to “hide” the marijuana from

authorities.

4.    The district court did not err in denying Morales’s motion for a judgment of

acquittal with respect to Count III (possession of marijuana with the intent to

distribute). Morales was not merely “present” at properties on which police

discovered more than 4,000 marijuana plants growing. He owned the properties.

The government also adduced testimony that Morales was closely involved with

the marijuana grows on his property and that growers supplied him with marijuana

in lieu of rent. Morales was arrested with small quantities of marijuana on his

person, as well as a large amount of cash. Marijuana processing materials,

including a digital scale, were found in Morales’s house. Morales owned a second

property which witnesses described as a “stash house” for marijuana. The

evidence was more than sufficient for the jury to conclude that Morales exercised

“ownership, dominion, or control over the [marijuana] itself or the premises . . . in

which the [marijuana was] concealed.” United States v. Johnson, 187 F.3d 1129,

1134 (9th Cir. 1999) (emphasis in original) (internal quotation marks omitted).

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5.    The district court did not abuse its discretion in concluding that a testifying

police officer’s prior felony drug conviction and pending administrative

investigation were not material for Brady/Giglio purposes. See Giglio v. United

States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Evidence of

the conviction would have been inadmissible under the Federal Rules of Evidence

for several reasons. First, the conviction was expunged under California law. See

Fed. R. Evid. 609(c)(1). Second, the conviction was more than ten years old, and

because it was not for a crime involving dishonesty or false statements, it was of

limited probative value relative to its prejudicial effect. See Fed. R. Evid.

609(b)(1). Finally, Morales’s contention that the evidence could have led to

admissible evidence if timely disclosed is entirely vague and speculative.

6.    The district court did not err in applying sentencing enhancements for

Morales’s role in the offense, U.S.S.G. § 3B1.1(a), and for maintaining drug-

involved premises, U.S.S.G. § 2D1.1(b)(12). The enhancement for being a leader

or organizer of a criminal scheme “applies to defendants who have the ability and

influence necessary to coordinate the activities of others to achieve the desired

result. . . .” United States v. Doe, 778 F.3d 814, 824-25 (9th Cir. 2015) (emphasis

added). Here, there was adequate evidence that Morales organized the criminal

activity. As a landlord who rented his property to marijuana growers, he

                                           5
determined who participated in the scheme. As he could have terminated the

leases of his coconspirators at any time, Morales also determined the extent of his

coconspirators’ participation. Morales also managed the assignment of plots to

individual tenants for marijuana grows; distributed raw materials for marijuana

cultivation (including starter plants and water for irrigation); and managed access

to centralized locations for the processing of the marijuana. A witness testified at

trial that Morales instructed her to deal with the police if they searched the property

because she spoke English well. There was ample evidence from which the district

court could conclude that Morales was at least an organizer, and perhaps a leader,

of the criminal conspiracy.

      With respect to the enhancement for maintaining drug-involved premises,

Morales acknowledged that he was aware of the extensive marijuana cultivation

operation on his property and that he derived revenue from the growers involved.

Moreover, the jury convicted Morales of a crime with the same elements. The

district court did not err in applying the enhancement.

7.    The district court erred, however, in its application of a two-level sentencing

enhancement for possession of a “dangerous weapon (including a firearm).”

U.S.S.G. § 2D1.1(b)(1).

      The district court mentioned at sentencing both the presence of what the

                                           6
court described as a “probably inoperable” .22 rifle in Morales’s kitchen, and the

firearms found in the possession of Morales’s coconspirators, but did not squarely

premise the firearms enhancement on one or the other, or on both. As to the .22

rifle, the district court did not rule on Morales’s contention that it was “clearly

improbable that the weapon was connected with the offense.” U.S.S.G. §

2D1.1(b)(1), cmt. n.11(a). The Application Note to Subsection (b)(1) states that it

would be “clearly improbable” that an unloaded hunting rifle in the closet of a

defendant’s residence would be connected with the underlying offense, even where

that defendant was arrested at his residence. Id. That a firearm is not currently

useable is therefore of some pertinence in determining whether it is “clearly

improbable” that the gun was kept in connection with the offense. Without a

determination of whether or not the gun was operable, the district court could not –

and did not – consider all the factors relevant to the “clearly improbable” standard.

The district court did note that inoperable guns can, under some circumstances, be

used for protection, as they may instill fear despite their defects. See United States

v. Smith, 905 F.2d 1296, 1300 (9th Cir. 1990), superseded by statute on other

grounds. But that is true of an unloaded gun as well. The Application Note

indicates that the nonfunctional nature of a stowed firearm is nonetheless pertinent

to the “clearly improbable” inquiry.

                                            7
      To the extent the district court’s application of the dangerous-weapon

enhancement was based on the firearms possessed by Morales’s coconspirators,

U.S.S.G. § 1B1.3(a)(1)(B) requires that a co-defendant’s acts in furtherance of a

jointly undertaken criminal activity be “reasonably foreseeable” to the defendant to

justify imputing them to the defendant for sentencing purposes. The district court

did not so find. Instead, it relied solely on the fact that some of the conspirators had

guns for the purpose of protection. See United States v. Garcia, 909 F.2d 1346,

1350 (9th Cir. 1990). That finding was inadequate for the purposes of U.S.S.G. §

1B1.3(a)(1)(B).

      Because of the absence of factual findings by the district court regarding the

operability of the .22 rifle, and regarding the foreseeability to Morales that his

coconspirators possessed operable firearms, we cannot say that the district court

explained the reasoning behind its sentence “sufficiently to permit meaningful

appellate review.” United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008).

8.    The gun enhancement increased Morales’s offense level from 34 to 36, and

his recommended Guidelines range from 168-210 months to 210-262 months. The

district court placed exceptional weight on the possession of firearms, stating three

times at sentencing that “guns change everything,”and telling Morales that it was

“finding these horrid consequences for not just the drugs, but the guns.” After the

                                           8
court issued its sentence, the judge’s parting words to Morales concerned the

significance of the guns to “the way judges sentence.”

      Because the district court procedurally erred in imposing the gun

enhancement and stressed the importance of that enhancement to the sentence

imposed, we vacate the sentence and remand for consideration of the specific

factual issues necessary to impose the gun enhancement, and for resentencing in

light of the findings made. See United States v. Naranjo, 52 F.3d 245, 251 (9th

Cir. 1995); see also United States v. Lloyd, 807 F.3d 1128, 1143 (9th Cir. 2015).

9.    Morales also argues that the sentence imposed, 210 months, was

substantively unreasonable. See United States v. Amezcua-Vasquez, 567 F.3d

1050, 1054-58 (9th Cir. 2009). As we have vacated the sentence imposed, we do

not reach that question.



Morales’s conviction is AFFIRMED, his sentence is VACATED, and we

REMAND for resentencing.




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