                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 26 2014

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

UNITED STATES OF AMERICA,                        No. 12-50512

              Plaintiff - Appellee,              D.C. No. 2:07-cr-01079-DSF-16

  v.
                                                 MEMORANDUM*
CARLOS RODRIGUEZ, AKA Face,
AKA Seal P,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted June 3, 2014
                              Pasadena, California

Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, District
Judge.***

       A jury convicted appellant Carlos Rodriguez of conspiracy to distribute at

least five-hundred grams of methamphetamine mixture or at least fifty grams of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        ***
             The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
pure methamphetamine. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(viii).

After we reversed the jury’s methamphetamine quantity finding, United States v.

Maciel, 461 Fed. App’x 610, 615–16 (9th Cir. 2011), the district court made the

quantity determination anew and found Rodriguez responsible for approximately

seventy grams of methamphetamine mixture with a purity of forty-two percent.

That finding put Rodriguez at base offense level twenty-eight and a Sentencing

Guidelines range of 140 to 175 months. Taking into account Rodriguez’s criminal

history and the danger he posed to the community, the district court sentenced

Rodriguez to 188 months.

      Rodriguez now asks us (1) to vacate and remand his sentence because the

district court’s quantity determination was clearly erroneous, and (2) to strike the

condition of his supervised release forbidding him from associating with “persons

associated with the F-13 gang” as unconstitutionally vague. We affirm

Rodriguez’s sentence, but remand to the district court to strike the clause “or

persons associated with the F-13 gang” from Rodriguez’s conditions of supervised

release.

      The government concedes that the clause “or persons associated with the F-

13 gang” in Rodriguez’s conditions of supervised release is unconstitutionally




                                          2
vague. See United States v. Johnson, 626 F.3d 1085, 1091 (9th Cir. 2010). On

remand, the district court shall revise condition nine accordingly.

      We conclude that the district court’s thoughtful and careful use of

comparator evidence seized from Rodriguez’s suppliers to calculate the purity and

thus the quantity of the methamphetamine involved in the conspiracy possessed

“sufficient indicia of reliability to support its probable accuracy.” United States v.

Forrester, 616 F.3d 929, 949 (9th Cir. 2010); accord United States v. Lopes-

Montes, 165 F.3d 730, 731–32 (9th Cir. 1998). Moreover, the district court

exercised appropriate caution and gave the defendant the benefit of the doubt in

using forty-two percent purity instead of ninety-eight percent -- as urged by the

government -- as a starting point. See id.

      AFFIRMED in part and REMANDED for further proceedings.




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