United States v. Lopez-Morales

MEMORANDUM ^**

Guillermo Lopez-Morales (“Lopez”) appeals his convictions for conspiracy to distribute controlled substances, see 21 U.S.C. §§ 841, 846, and use of a communication facility in furtherance of a controlled-substance offense. See 21 U.S.C. § 843(b). We affirm the conviction.

Although the indictment conjunc-tively charged Lopez with conspiring to distribute cocaine and methamphetamine, the district court did not constructively amend or prejudicially vary the indictment by instructing the jury that Lopez could be found guilty if he conspired to- distribute either cocaine or methamphetamine. See United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985); United States v. Toliver, 351 F.3d 423, 430 (9th Cir.2003); United States v. Booth, 309 F.3d 566, 572 (9th Cir.2002).

Similarly, the district court did not err by not including a specific reference to Washington in the jury instructions. Lopez contends that this omission allowed the jury to convict him based on a different conspiracy than that charged in the indictment. But even assuming the government proved multiple conspiracies, rather than the single conspiracy charged in the indictment, Lopez failed to demonstrate prejudice. See United States v. Morse, 785 F.2d 771, 774-75 (9th Cir.1986).

We decline to reach Lopez’ ineffective assistance claim because the record is not sufficiently developed for review of this issue. See United States v. Sager, 227 F.3d 1138, 1149 (9th Cir.2000).

We have considered Lopez’ remaining contentions and find them without merit.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.