United States v. Chavez

31 F. App'x 480

Opinion

MEMORANDUM

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Appellant (“Chavez”) challenges his conviction after a jury trial for conspiracy to manufacture, distribute and to possess with the intent to distribute methamphetamine. Chavez argues that there was a fatal variance between the indictment and proof because a single conspiracy was charged and multiple conspiracies were proven at trial. Chavez also challenges his 360 month sentence, arguing that the provisions under which he was sentenced, 21 U.S.C. §§ 841(b)(1)(A) & (B), are facially unconstitutional. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Subsequent to the filing of briefs in this appeal, an en banc panel of this court decided that 21 U.S.C. §§ 841(b)(1)(A) & (B) are constitutional. United States v. Buckland, 277 F.3d 1173, 1187 (9th Cir. 2002). Chavez’ argument on this score must therefore fail.

As to Chavez’ variance claim, viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to permit a rational trier of fact to find the essential elements of a single conspiracy beyond a reasonable doubt. We therefore reject Chavez’ variance argument. United States v. Duran, 189 F.3d 1071, 1078 (9th Cir.1999).

The jury found Chavez’ co-conspirator not guilty on some charged offenses in a manner that Chavez characterizes as inconsistent with the conviction on the conspiracy charge. However, it is well settled that even verdicts that acquit on predicate offenses do not undermine the jury’s finding of guilt on the compound offense of conspiracy. United States v. Powell, 469 U.S. 57, 64-5, 105 S.Ct. 471, 88 L.Ed.2d 461 (1984). Chavez’ argument here must therefore fail as well.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.