United States v. Jose Rojas-Guzman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10426
Plaintiff - Appellee, D.C. No. 3:10 CR-0109- RCJ
v.
MEMORANDUM*
JOSE ROJAS-GUZMAN, AKA Angel,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10427
Plaintiff - Appellee, D.C. No. 3:11 CR-0088- RCJ
v.
JOSE ROJAS-GUZMAN, AKA Angel,
Defendant - Appellant.
Appeals from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 11, 2013**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior
District Judge.***
Jose Rojas-Guzman (“Rojas”) appeals his convictions for conspiracy to
possess with intent to distribute and to distribute methamphetamine, distribution of
methamphetamine, and possession with intent to distribute methamphetamine. His
sole contention on appeal is that the verdict is not supported by sufficient
evidence.1 To prevail, he must show that no “rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v.
Sullivan, 522 F.3d 967, 974 (9th Cir. 2008) (per curiam) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). Because Rojas has not made that showing,
we affirm.
“The elements of drug conspiracy under [21 U.S.C. § 846] are: (1) an
agreement to accomplish an illegal objective, and (2) the intent to commit the
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable William H. Stafford, Jr., Senior United States District
Judge for the Northern District of Florida, sitting by designation.
1
Rojas has also appealed a separate conviction for illegal re-entry,
which was consolidated with his appeal of the drug conviction. Because Rojas
does not raise any claims of error with respect to the re-entry conviction, all such
claims are waived; thus, that conviction is affirmed.
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underlying offense.” United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th
Cir. 2001). The government “can prove the existence of a conspiracy through
circumstantial evidence that defendants acted together in pursuit of a common
illegal goal.” United States v. Bishop, 1 F.3d 910, 911 (9th Cir. 1993). Moreover,
“a co-conspirator is vicariously liable for reasonably foreseeable substantive
crimes committed by a co-conspirator in furtherance of the conspiracy.” United
States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir. 1997) (per curiam) (citing
Pinkerton v. United States, 328 U.S. 640, 647-48 (1946)).
The government presented numerous recordings of phone calls between
Rojas and two individuals, during which Rojas instructed the other men about
specific customers and pricing for methamphetamine. There was also evidence
that the other two men had – in accordance with the instructions from Rojas – sold
methamphetamine to a confidential informant. Finally, there was evidence – in the
form of telephone recordings and visual surveillance – that Rojas told the two men
to pick up additional methamphetamine at his home and that the men followed
through on that instruction.
This evidence was sufficient to support the conspiracy count as well as the
two substantive counts based on Pinkerton liability. Alternatively, Rojas’s verbal
assistance and instructions regarding the deals were sufficient to uphold the
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substantive counts based on an aiding and abetting theory. See United States v.
Savinovich, 845 F.2d 834, 838 (9th Cir. 1988) (holding that an aider and abettor is
liable for drug distribution if “the defendant associate[d] with the criminal venture,
participate[d] in it, and [sought] by actions to make it succeed”).
The judgments of conviction are AFFIRMED.
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