United States v. Francisco Montes-Vargas

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 6, 2019
• Docket: 17-10470
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 6 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10470

Plaintiff-Appellee, D.C. No. 2:10-cr-00708-GMS-3 v.

FRANCISCO ALFREDO MONTES- MEMORANDUM* VARGAS, AKA Pastas, AKA Consejo Rodriguez-Palacios,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, District Judge, Presiding

Submitted February 4, 2019** Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

Defendant-Appellant Francisco Alfredo Montes-Vargas (Defendant) appeals

his 204-month sentence for conspiracy to distribute and distribution of cocaine and

methamphetamine pursuant to 21 U.S.C. §§ 841 and 846. After a jury found

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Defendant guilty on both counts, the district court initially sentenced him to 292

months of imprisonment based on an incorrect presentence report (PSR). See

United States v. Montes-Vargas, 679 F. App’x 588, 589 (9th Cir. 2017). Following

our remand for resentencing, id., the district court resentenced Defendant to 204

months of imprisonment based on a revised PSR. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

1. The district court did not err when it attributed the entire quantity of drugs in

the stash house to Defendant when calculating his base offense level, even though

Defendant personally delivered only a portion of those drugs. “[I]n determining

for purposes of sentencing the quantity of drugs for which a conspirator will be

held responsible, the district court is required to determine the quantity of drugs the

conspirator reasonably foresaw or which fell within the scope of his particular

agreement with the conspirators.” United States v. Kilby, 443 F.3d 1135, 1142 (9th

Cir. 2006) (quoting United States v. Banuelos, 322 F.3d 700, 702 (9th Cir. 2003));

see also U.S.S.G. § 2D1.1, cmt. 5 (“If the offense involved both a substantive drug

offense and an attempt or conspiracy . . . the total quantity involved shall be

aggregated to determine the scale of the offense.”). Based on the intercepted

telephone calls in which Defendant discussed the conspiracy, it was not plainly

erroneous for the district court to conclude that he reasonably could have foreseen

that the enterprise involved the total amount of stash house drugs, which, as the

2 district court noted, was sufficient to reach the offense level used in the

resentencing. Furthermore, as to Count 4—the substantive drug offense—the jury

indicated on a special verdict form that the drugs attributable to Defendant

exceeded the threshold amounts alleged in the indictment, which further supports

the inference that Defendant was responsible for the entire quantity of drugs

contained in the stash house.

2. We also conclude that that the district court did not err when it adopted a

drug calculation in the PSR that combined the various types of drugs seized using

the drug equivalency table, rather than treating each drug separately. See U.S.S.G.

§ 2D1.1, cmt. 7 (“Where there are multiple transactions or multiple drug types, the

quantities of drugs are to be added.”).

3. We find that the district court did not abuse its discretion when it applied a

two-level enhancement for the importation of methamphetamine, as it was not

clearly erroneous for the court to conclude that the methamphetamine was

imported from Mexico and that Defendant knew of the importation. See United

States v. Job, 871 F.3d 852, 870–72 (9th Cir. 2017).

4. The district court did not err when it applied the same mandatory minimum

sentence to the conspiracy count as to the corresponding substantive offense. See

United States v. Dabdoub-Canez, 961 F.2d 836, 838 (9th Cir. 1992).

5. Lastly, although Defendant argues that a new trial is needed due to

3 erroneous jury instructions, that issue is beyond the scope of our limited remand

and will not be considered. See Montes-Vargas, 679 F. App’x at 589 (remanding

for resentencing only).

AFFIRMED.