                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 22 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30271

              Plaintiff - Appellee,              D.C. No. 3:10-cr-05723-BHS-3

  v.
                                                 MEMORANDUM*
FABIAN MENDEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                             Submitted July 11, 2013**
                               Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.***




        *
             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).
        ***
              The Honorable Donald E. Walter, Senior District Judge for the United
States District Court for the Western District of Louisiana, sitting by designation.
       Defendant-Appellant Fabian Mendez appeals his jury conviction of

conspiracy to distribute and possession of 500 grams of methamphetamine.

Mendez argues that there was insufficient evidence for a jury to convict him of

those charges. Mendez failed to raise this issue at trial. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm Mendez’s conviction on both counts.

       Because Mendez failed to move for a judgment of acquittal, we review his

claim for plain error. See United States v. Pelisamen, 641 F.3d 399, 408-09 (9th

Cir. 2011). “The plain-error standard of review dictates that reversal is warranted

only where there has been (1) error; (2) that is plain; (3) that affects substantial

rights; and (4) where the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 404. Here, there is no error, let alone

plain error.

       There is sufficient evidence to support a conviction if, “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.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). The evidence showed that Mendez and two

co-defendants went together to meet an informant. The informant was told that

Mendez would be delivering the drugs to him. Mendez asked to see the money

before giving the drugs to the informant and then told the informant where the


                                         Page 2
drugs were located. Moreover, after Mendez was arrested, he waived his Miranda

rights and admitted that he handled and delivered methamphetamine. The

evidence demonstrated that there was an existing conspiracy to distribute

methamphetamine and that Mendez joined the conspiracy by willfully participating

in a controlled sale of three pounds of methamphetamine. See United States v.

Salazar, 5 F.3d 445, 446 (9th Cir. 1993) (noting “the requirement of reasonable

foreseeability . . . does not apply to conduct that the defendant personally

undertakes” and that the defendant “is responsible for the drugs that came through,

even if he did not know what drugs they were”).

      AFFIRMED.




                                        Page 3
