United States v. Jose Montiel Rangel

96 F.3d 1452

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Montiel RANGEL, Defendant-Appellant.

No. 95-10388.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 12, 1996.*
Decided Sep. 04, 1996.

1

Before: JOHN T. NOONAN, Jr., THOMPSON, Circuit Judges, HAGEN**, District Judge.

2

MEMORANDUM***

3

Following a jury trial, Defendant-Appellant Jose Montiel Rangel was convicted of conspiracy to distribute and possess methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Rangel timely appealed his sentence, specifically the district court's finding that a quantity of methamphetamine seized from the apartment of a coconspirator was reasonably foreseeable to Rangel. This court has jurisdiction of Rangel's appeal pursuant to 18 U.S.C. § 3742, and we affirm.

4

A defendant who is guilty of conspiracy to possess and distribute drugs may properly be held accountable for any drugs possessed or distributed by coconspirators, so long as those drugs were foreseeable to him. United States v. Diaz-Rosas, 13 F.3d 1305, 1308 (9th Cir.), cert. denied, 114 S. Ct. 1848 (1994). "Whether conduct in furtherance of a conspiracy was reasonably foreseeable is a factual finding reviewed for clear error." United States v. Bauer, 84 F.3d 1549, 1561 (9th Cir.1996). Foreseeability, like other relevant conduct in sentencing, must be established by a preponderance of the evidence. Diaz-Rosas, 13 F.3d at 1308.

5

At the sentencing hearing, the district court set forth in detail ample evidence supporting its finding of foreseeability by a preponderance, ER at 30-32, and did not clearly err in so finding. The district court's finding was based in part on its determination of the credibility of trial witnesses, which determination is entitled to great deference. See United States v. Sealy, 830 F.2d 1028, 1032 (9th Cir.1987).

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4

**

Hon. David Warner Hagen, United States District Judge for the District of Nevada, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3