United States v. Pablo Anzaldo-Contreras , 548 F. App'x 360 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50421
Plaintiff - Appellee, D.C. No. 3:11-cr-01447-LAB-2
v.
MEMORANDUM*
PABLO OSCAR ANZALDO-
CONTRERAS,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50052
Plaintiff - Appellee, D.C. No. 3:11-cr-01447-LAB-1
v.
FERNANDO JAVIER ALARID,
Defendant - Appellant.
Appeals from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted November 4, 2013**
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Defendants Pablo Oscar Anzaldo-Contreras and Fernando Javier Alarid
appeal their convictions for conspiracy to import marijuana, 21 U.S.C. §§ 952,
960, 963; conspiracy to distribute marijuana, 21 U.S.C. §§ 846, 841(a)(1); and
possession of marijuana with intent to distribute and aiding and abetting, 21 U.S.C.
§ 841(a)(1), 18 U.S.C. § 2, as well as the length of their sentences. We affirm.
1. Sufficient evidence supported Defendants’ convictions. We review de
novo for sufficiency of the evidence, United States v. Sullivan, 522 F.3d 967, 974
(9th Cir. 2008) (per curiam), and reverse only if the evidence, viewed in the light
most favorable to the prosecution, is insufficient to allow "any rational trier of fact
[to find] the essential elements of the crime beyond a reasonable doubt," Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The testimony of a co-conspirator is sufficient
to sustain a conviction so long as that testimony is not "incredible or unsubstantial
on its face." United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986). Because
the co-conspirator testimony against Defendants was not incredible on its face and
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
2
was, in fact, partially corroborated by independent evidence, we must affirm.
United States v. Yossunthorn, 167 F.3d 1267, 1270 (9th Cir. 1999).
2. The district court did not abuse its discretion, United States v. Simtob,
485 F.3d 1058, 1064 (9th Cir. 2007), when it responded to two jurors’ inquiries
about safety and then allowed them to remain on the jury.1 "When a source
presents the court with a colorable claim of juror bias, the court must make some
inquiry of the juror, whether through an in camera hearing or otherwise, to
determine whether the allegedly affected juror is incapable of performing the
juror’s functions impartially." Id. (internal quotation marks omitted). Even
assuming a "colorable claim of juror bias,"2 the court followed proper procedures.
The district judge, with counsel for both parties present, conducted individual in
camera interviews with each juror who expressed concerns. He allowed the jurors
to stay only after he was satisfied that each could serve impartially. At
1
The government notes that Defendants failed to object to the continued
presence of the jurors at trial, even though they were aware of the jurors’ concerns
at the time, and so review is only for plain error. United States v. Olano, 507 U.S.
725, 731 (1993). Because we would reach the same decision under either standard,
we use the more lenient standard.
2
It is not clear that there was an initial "colorable claim of juror bias."
Unlike the juror in Simtob, who felt threatened by the defendant because he
allegedly "eye-ball[ed]" the juror, 485 F.3d at 1060, the jurors here expressed only
generalized concern about being involved in a case in which enormous quantities
of drugs were at issue.
3
Defendants’ request, the judge also addressed the jury at large. There is no
evidence that jurors’ initial concerns about serving on a high-profile case deprived
Defendants of the right to an impartial jury.
3. Defendant Anzaldo-Contreras’ 235-month sentence was not procedurally
erroneous or substantively unreasonable. United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). We review sentencing decisions for abuse of
discretion.3 Id. The district court properly calculated the Guidelines, explicitly
recognized that they were advisory, properly considered the 18 U.S.C. § 3553(a)
factors and the recommendations of the parties, id. at 991, adequately explained the
chosen sentence based on that analysis and the facts in the record, and committed
no other procedural error, Gall v. United States, 552 U.S. 38, 51 (2007). The court
considered the disparity between Anzaldo-Contreras’ sentence and those of co-
defendants, 18 U.S.C. § 3553(a)(6), and permissibly determined that the
differences were justified by the co-defendants’ cooperation with the government
3
Although Defendants argue only substantive unreasonableness, two of
their objections (insufficient consideration of the government’s recommendation,
reliance on erroneous facts) appear to assert procedural error. The government
notes that Defendants failed to object to the district court’s procedures at trial, and
so we should review for plain error. United States v. Valencia-Barragan, 608 F.3d
1103, 1108 (9th Cir. 2010). Again, because we reach the same result under any
standard, we use the standard more favorable to Defendants and review for abuse
of discretion.
4
and Anzaldo-Contreras’ continued refusal to take responsibility during sentencing,
United States v. Smith, 424 F.3d 992, 1016-17 (9th Cir. 2005). The 235-month
sentence—at the low end of the Guidelines’ recommended range—was not
substantively unreasonable in light of the totality of the circumstances, the
deference due the district judge’s individualized determination, and the 18 U.S.C.
§ 3553(a) factors. Carty, 520 F.3d at 995.
4. Defendant Alarid’s sentence was not substantively unreasonable. We
again review for abuse of discretion. Carty, 520 F.3d at 993. The range
recommended under the Guildelines was 360 months to life because of the amount
of marijuana, Alarid’s managerial role in the conspiracy, and his prior criminal
history. The district court departed downward to 300 months because of Alarid’s
brain tumor. Alarid points to no factor under 18 U.S.C. § 3553(a) that supports his
claim of unreasonableness, United States v. Booker, 543 U.S. 220, 261-62 (2005),
and in fact cites only cases in which this court has upheld the district court’s
downward departure for health reasons. A further downward departure premised
on Alarid’s health—a factor that was already properly considered by the district
court—is not required.
AFFIRMED.
5