United States v. Mario Benitez , 650 F. App'x 404 ( 2016 )


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  •                                                                          FILED
    UNITED STATES COURT OF APPEALS
    MAY 18 2016
    FOR THE NINTH CIRCUIT                     MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                         No. 13-10171
    Plaintiff - Appellee,               D.C. No. 2:09-cr-01509-NVW-7
    District of Arizona,
    v.                                               Phoenix
    MARIO BENITEZ,
    ORDER
    Defendant - Appellant.
    Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
    Appellant Benitez’s petition for panel rehearing is GRANTED. The
    memorandum disposition filed October 2, 2015 is withdrawn and replaced by the
    memorandum disposition filed contemporaneously with this order.
    The pending petition for rehearing en banc is now moot. The parties may
    file additional petitions for panel rehearing or rehearing en banc.
    NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FILED
    FOR THE NINTH CIRCUIT
    MAY 18 2016
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                        No. 13-10171
    Plaintiff - Appellee,              D.C. No. 2:09-cr-01509-NVW-7
    v.
    MEMORANDUM*
    MARIO BENITEZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Neil V. Wake, District Judge, Presiding
    Argued and Submitted August 11, 2015
    San Francisco, California
    Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
    Mario Benitez appeals his 144-month sentence, imposed following his
    convictions for possession with intent to distribute a controlled substance (21
    U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)) and conspiracy to possess a controlled
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    substance with intent to distribute (21 U.S.C. § 846).1 We vacate the sentence and
    remand in light of the recent sentence reduction of Benitez’s co-defendant Marcela
    Benitez-Salcido.
    At the resentencing, the district court varied Benitez’s sentence downward
    because it considered him to be substantially less culpable than Benitez-Salcido.
    Recently, the district court reduced Benitez-Salcido’s sentence pursuant to
    Amendment 7822 and, in response to our inquiry, stated that it “welcomes the
    opportunity to” revisit Benitez’s sentence to consider whether that reduction
    created an unreasonable disparity between the two sentences. In light of the
    district court’s statement, we vacate the sentence and remand for resentencing on
    an open record.
    Benitez also raises various other challenges to his sentence. Because we
    vacate and remand, we need not reach the majority of these arguments. For the
    1
    Benitez was also convicted of conspiracy to import controlled substances
    (21 U.S.C. § 963). The district court sentenced him to 144 months imprisonment
    for the three convictions. Benitez appealed, and this court vacated the conspiracy
    to import controlled substances conviction for lack of evidence. United States v.
    Benitez, 500 F. App’x 660, 662-63 (9th Cir. 2012). On remand, the district court
    imposed the same 144-month sentence for the remaining two convictions as it had
    for all three convictions.
    2
    Amendment 782 reduced by two the base offense level for certain drug
    crimes. United States Sentencing Commission, Guidelines Manual, supp. app’x.
    C, amend 782 (2014).
    2
    benefit of the district court, however, we address Benitez’s argument that the
    district court erred in assigning him a base offense level of 36 because there was
    insufficient evidence to attribute to him at least 50 kg of cocaine. For sentencing
    purposes, the government “is required to prove the approximate quantity [of a
    controlled substance] by a preponderance of the evidence.” United States v. Culps,
    
    300 F.3d 1069
    , 1076 (9th Cir. 2002) (internal quotations and citations omitted).
    Here, a witness testified 1) that he purchased drugs from Benitez’s organization on
    six or seven occasions; 2) that he once bought 20 kg of cocaine from the
    organization and; 3) that when traveling from Florida to California to purchase
    cocaine, he usually carried enough cash with him to purchase approximately 10 kg
    worth. In addition, on one occasion the witness was arrested with approximately
    11 kg of cocaine after buying from the organization. This evidence suffices to
    attribute at least 50 kg of cocaine to Benitez.3
    The sentence is VACATED and the case REMANDED for resentencing.
    3
    Benitez also argues that the two pre-sentence reports committed various
    errors in attributing 50.3 grams of crack cocaine to him. Even if Benitez is right,
    these alleged errors are harmless, as Benitez’s base offense level is still 36 whether
    one attributes to him 50.3 or zero grams of crack cocaine.
    3
    

Document Info

Docket Number: 13-10171

Citation Numbers: 650 F. App'x 404

Judges: Callahan, Reinhardt, Tashima

Filed Date: 5/18/2016

Precedential Status: Non-Precedential

Modified Date: 11/6/2024