                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 18 2010

                                                                         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. 09-10218

              Plaintiff - Appellee,               D.C. No. 1:08-CR-00495-HG-2

  v.
                                                  MEMORANDUM *
DARWIN LEONES,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Hawaii
                   Helen Gillmor, Senior District Judge, Presiding

                            Submitted February 9, 2010 **
                                Honolulu, Hawaii

Before: FARRIS, D.W. NELSON and BEA, Circuit Judges.

       Darwin Leones appeals his jury conviction for aiding in the use of a firearm

in relation to a drug trafficking offense, a violation of 18 U.S.C. § 924(c)(1), on the




        *
             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).
ground there was insufficient evidence to support that such a drug trafficking

offense occurred.

      Leones raised the insufficiency of evidence issue for the first time in his

reply brief. This court “will not ordinarily consider matters on appeal that are not

specifically and distinctly argued in appellant’s opening brief.” Miller v. Fairchild

Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986); see also F ED. R. A PP. P. 28(a)(5).

      Assuming, arguendo, that the issue is not waived, Leones’ argument is

meritless. “The standard of review for determining the sufficiency of the evidence

‘is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” United States v. Inzunza, 580 F.3d 894, 899

(9th Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis

in Jackson). The record is replete with evidence that Leones and his colleagues

acquired, possessed and distributed more than enough methamphetamine to

establish the factual predicate required for Mr. Leones’ conviction. The parties do

not dispute that Leones used a gun in furtherance of this conduct.

      AFFIRMED.




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