United States v. Alex Tejeda

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30103
Plaintiff-Appellee, D.C. No.
3:15-cr-00066-TMB-SAO-1
v.
ALEX JOSE TEJEDA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted August 9, 2022
Anchorage, Alaska
Before: S.R. THOMAS, McKEOWN, and CLIFTON, Circuit Judges.
Alex Jose Tejeda appeals the district court’s judgment sentencing him to a
term of 140 months imprisonment followed by eight years of supervised release for
the distribution of heroin. He argues that the district court erred by failing to
vacate his conviction for distribution following the vacatur of his conviction for
conspiracy. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Although the reversal of Tejeda’s conspiracy conviction “precludes the
imposition of vicarious liability upon” Tejeda for the acts of his alleged co-
conspirator, United States v. Kaiser, 660 F.2d 724, 732 (9th Cir. 1981), Tejeda did
not ask the district court to vacate his distribution conviction, and we therefore
review only for plain error. Fed. R. Crim. P. 52(d). “[T]he language of Rule 52(b)
is permissive, not mandatory. . . .” United States v. Alferahin, 433 F.3d 1148, 1159
(9th Cir. 2006). Even if error is plain and affects substantial rights, reversal for
plain error is only appropriate where the error “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United States v. Olano, 507
U.S. 725, 736 (1993) (brackets and citation omitted). In determining whether this
“final, discretionary prong” shows that the error “warrant[s] correction,” “we
consider all circumstances at trial including the strength of the evidence against the
defendant.” United States v. Perez, 116 F.3d 840, 847–48 (9th Cir. 1997) (en
banc) (citation omitted).
We decline to exercise our discretion to reverse Tejeda’s conviction on plain
error review because the error, if any, did not “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 736(citation omitted). We have considered all the relevant circumstances, including
the protracted and unusual procedural history of this case and the evidence
presented at trial. We conclude that “the government’s ‘strong and convincing
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evidence’ demonstrate[s] that a different decision by the jury would be ‘extremely
unlikely.’” Alferahin, 433 F.3d at 1159 (quoting Perez, 116 F.3d at 848). Laura
Johnson testified that she asked Tejeda to bring her heroin and he agreed to do so.
This testimony is supported by Tejeda’s phone records, which show that he agreed
to bring over “blk,” a coded reference to heroin. Police officers saw Tejeda arrive
at Johnson’s apartment soon thereafter carrying a black gym bag, and Johnson
testified at trial that Tejeda said he left heroin in her bedroom. Police later
recovered heroin from Johnson’s apartment and from the scene of Tejeda’s arrest.
At this point, “the greater threat to the integrity and fairness of judicial proceedings
would arise from the reversal of a conviction on flawed jury instructions rather
than from affirming an imperfect verdict.” Id.AFFIRMED.
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