United States v. Lucio Landeros-Valdez

FILED
NOT FOR PUBLICATION AUG 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30082
Plaintiff - Appellee, D.C. No. 1:11-cr-00096-BLW-3
v.
MEMORANDUM*
LUCIO LANDEROS-VALDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted July 9, 2013
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
Plaintiff Lucio Landeros-Valdez (“Landeros-Valdez”) argues that there is
insufficient evidence to support his conviction for possession with the intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and
18 U.S.C. § 2. Landeros-Valdez also challenges his mandatory minimum sentence
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of twenty years, pursuant to 21 U.S.C. § 841(b)(1)(A)(viii). The facts of this case
are known to the parties and there is no need to restate them. We AFFIRM.
1. Landeros-Valdez was convicted at a joint trial with co-defendant Jose
Octavio Arreola-Beltran (“Arreola-Beltran”). A third co-defendant, Jose Gabriel
Virgen, testified as a government witness. At trial, the government presented
evidence that Landeros-Valdez aided and abetted Arreola-Beltran. To support this
theory, the government provided evidence showing: (1) Arreola-Beltran committed
the offense of possession with intent to distribute methamphetamine; (2) Landeros-
Valdez knowingly and intentionally aided, counseled, commanded, induced, or
procured Arreola-Beltran to commit the crime; and (3) Landeros-Valdez acted as
an aider and abettor before the crime was completed. United States v. Delgado,
357 F.3d 1061, 1067 (9th Cir. 2004). Thus, “[v]iewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found” that
the essential elements of the crime of possession with the intent to distribute
methamphetamine were proved beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 334 (1979) (internal quotation marks omitted); United States v.
Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000).
2. Landeros-Valdez objects to the imposition of a mandatory minimum
twenty year sentence pursuant to § 841(b)(1)(A)(viii). Landeros-Valdez’s opening
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brief conceded that because Landeros-Valdez did not object to the sentence
enhancement before the district court, this court should review for plain error. Fed.
Rule App. Proc. 28(a)(9)(B) (the appellant is required to identify the standard of
review in his or her opening brief). Landeros-Valdez’s opening brief did not cite
Ninth Circuit precedent that states that we are not bound by plain error review. Cf.
United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir. 2001).
Because this issue was not raised in Landeros-Valdez’s opening brief, this
argument is waived. Image Technical Serv., Inc. v. Eastman Kodak Co., 136 F.3d
1354, 1356-57 (9th Cir. 1998).
To prevail under plain error, Landeros-Valdez must show an error: (1) that
has not been intentionally relinquished or abandoned, (2) that is clear or obvious,
(3) that affected the outcome of the district court proceedings, and (4) that
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009). Landeros-
Valdez cannot meet part two of this test because the application of the § 841
sentence enhancement was not a “clear or obvious” error. Id.
AFFIRMED.
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