United States v. Herrera

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 07 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50275
Plaintiff - Appellee, D.C. No. 2:02-cr-00531-RSWL-1
v.
MEMORANDUM*
CENOBIO HUMBERTO HERRERA, Sr.,
AKA Bert Herrera, AKA Cenobio
Humberto Herrera, AKA Cenobio
Humberto Lanz,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted January 10, 2011
Pasadena, California
Before: O’SCANNLAIN, W. FLETCHER, and CLIFTON, Circuit Judges.
A jury convicted Cenobio Herrera of a number of crimes arising from an
extensive conspiracy to purchase pseudoephedrine at wholesale, to sell it for use in
manufacturing methamphetamine, and to launder the immense profits. The district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court sentenced him to 360 months in prison, consistent with the Federal
Sentencing Guidelines. Herrera appealed his convictions on a number of grounds,
each of which we rejected. We stated that:
[W]e affirm the conviction [sic]. However, because the district court
sentenced Herrera under the mandatory sentencing guidelines regime
that prevailed prior to the Supreme Court’s ruling in United States v.
Booker, 543 U.S. 220 (2005), and since we cannot reliably determine
whether the sentence imposed would have been materially different
had the district court known that the guidelines were advisory, we
order a limited remand under [United States v. Ameline, 409 F.3d
1073, 1084–85 (9th Cir. 2005)].
United States v. Herrera, 219 Fed. Appx. 686, 689 (9th Cir. 2007) (“Herrera I”).
On remand, the district court determined that it would have given Herrera
the same sentence even if it had known the Guidelines were advisory. In this
timely appeal from that sentencing determination, Herrera seeks to reopen his
challenge to the convictions which were affirmed in Herrera I. This he cannot do.
I
We have held that “challenges to a defendant’s conviction may be reviewed
on appeal from an Ameline remand, where . . . the challenge was raised in an
earlier appeal.” United States v. Van Alstyne, 584 F.3d 803, 812 (9th Cir. 2009).
Two of the challenges that Herrera now raises to his convictions were not raised on
his initial appeal. Accordingly, he cannot raise them now.
2
In his first appeal, Herrera did challenge the sufficiency of the evidence to
convict him of conspiring to aid and to abet the manufacture of over 500 grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1). But we rejected this
claim, calling the evidence supporting Herrera’s section 841(a)(1) conspiracy
conviction “overwhelming.” Herrera, 219 Fed. Appx. at 688. The law of the case
doctrine provides that “one panel of an appellate court will not as a general rule
reconsider questions which another panel has decided on a prior appeal in the same
case.” United States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999) (internal
quotation marks and citations omitted). However, a court may depart from the law
of the case doctrine if there has been “an intervening change in the law.” Id.Herrera argues that there have been two relevant intervening changes in the
law since his initial appeal was decided. First, he apparently believes that United
States v. Santos, 553 U.S. 507 (2008), stands for a general “anti-merger” principle
that goes something like this: where a defendant cannot violate a specific statute
without also violating a more general statute (and where the more general statute
provides for stricter punishment), the government is barred from prosecuting him
under the more general statute. Applied here, Herrera claims that anyone who
conspires to posses pseudoephedrine “knowing, or having reasonable cause to
believe that it will be used to manufacture” methamphetamine, in violation of 21
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U.S.C. § 841(c), will necessarily be guilty of conspiring to aid and abet the
manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Because
section 841(c) is more specific and more lenient than section 841(a)(1), Herrera
contends that one guilty of the former should not be chargeable with the latter.
But Santos does not stand for such a broad, free-floating “anti-merger” rule.
For starters, Santos involved money laundering and illegal gambling; it had
nothing to do with the drug statutes at the heart of Herrera’s claim. The four
justices in the Santos plurality only mentioned the “merger problem” in response
to the government’s argument from congressional intent. See id. at 515 (plurality
opinion). Instead, the crux of the plurality’s argument was that the term
“proceeds,” as used in the money laundering statute, is ambiguous and should
therefore be construed in Santos’s favor. See id. at 514. Likewise, Justice Stevens’
concurrence considered the merger problem only because the statute was
ambiguous. See id. at 526–27 (Stevens, J., concurring).
II
Second, Herrera claims that the standard of review applicable to his
sufficiency of evidence claim has changed since his initial appeal. At the end of
the government’s case, Herrera moved for acquittal under Federal Rule of Criminal
Procedure 29. However, he did not renew this motion at close of all the evidence.
4
On Herrera’s first appeal, we reviewed his sufficiency claim for plain error, as
required by United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200–01 (9th Cir.
2000). We have since recognized a futility exception to the Alvarez-Valenzuela
rule. See United States v. Esquivel-Ortega, 484 F.3d 1221, 1224–25 (9th Cir.
2007). In Esquivel-Ortega, the defendant made a Rule 29 motion “only a few
moments” before the close of evidence, but failed to renew the motion after two,
largely cumulative, pieces of evidence were admitted. On appeal, we applied de
novo review to his sufficiency claim because we found that “it would have been
futile for Esquivel to renew his motion following the offering of those two pieces
of evidence.” Id. at 1225. Herrera has not established that the Esquivel-Ortega
exception applies here. At any rate, it is clear that any change in the standard of
review would not have changed the result of Herrera’s prior appeal. See Herrera,
219 Fed. Appx. at 688 (concluding that the evidence supporting Herrera’s section
841(a)(1) conspiracy conviction was “overwhelming”).
As there has been no intervening change in the law that is relevant to
Herrera’s challenge to his section 841(a)(1) conspiracy conviction, it is precluded
by the law of the case.
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III
Because Herrera does not challenge his sentence in this appeal, and cannot
re-challenge his convictions, the decision of the district court is
AFFIRMED.
6