NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50368, 18-50408
Plaintiff-Appellee / D.C. No. Cross-Appellant, 2:17-cr-00122-SJO-6
v. MEMORANDUM* PEDRO GRANADOS SALDANA,
Defendant-Appellant / Cross-Appellee.
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding
Argued and Submitted August 12, 2020 Pasadena, California
Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,** District Judge.
Pedro Granados Saldana appeals his conviction for conspiracy to distribute
at least fifty grams of methamphetamine and his convictions for distribution of at
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. least five and fifty grams of the same, aiding and abetting. The Government
cross-appeals Saldana’s 110-month sentence imposed by the district court. We
have jurisdiction under 18 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part
and vacate and remand in part.
1. The district court did not err by denying Saldana’s motion for
judgment of acquittal based on insufficient evidence for his conviction of
conspiracy to distribute methamphetamine, a decision we review de novo. See
United States v. Mincoff, 574 F.3d 1186, 1191-92 (9th Cir. 2009). Evidence “is
sufficient to support a conviction if, viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at 1192 (internal
citation omitted).
Here, it is uncontested that this case involves an established conspiracy to
distribute methamphetamine. “Once a conspiracy is established, the Government
can prove a defendant’s knowing participation with evidence of the defendant’s
connection with the conspiracy.” United States v. Esquivel-Ortega, 484 F.3d 1221,
1228 (9th Cir. 2007) (internal citations omitted). Even a “slight connection” will
suffice. Id. While “mere presence” around those involved with the conspiracy is
insufficient, here the evidence demonstrates that Saldana intentionally participated
in the conspiracy. United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th
2 Cir. 2001). Indeed, Saldana was present for at least two out of the ten controlled
drug sales carried out by the Government’s confidential informant (“CI”) and on
both occasions Saldana directed the CI to another member of the conspiracy who
then executed the deals. Further, the cooperating witness (“CW”) testified that
Saldana was a street seller for Giovanny Ochoa, who ran the drug sales from 538
West 82nd Street (“538”) and 601 West 82nd Street (“601”). The CW also
testified that Saldana ran the early morning shift and frequently gathered drugs
from Ochoa and the CW to deliver to the dealers covering later shifts. A rational
trier of fact could therefore plausibly find beyond a reasonable doubt that Saldana
had at least a “slight connection” to the conspiracy. Esquivel-Ortega, 484 F.3d at
1228; Herrera-Gonzalez, 263 F.3d at 1095.
2. Because we conclude there is sufficient evidence for a rational trier of
fact to find beyond a reasonable doubt that Saldana aided and abetted the
distribution of methamphetamine, “we will not disturb the jury’s finding of guilt”
on this charge. See United States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir. 2002).
To support a conviction for aiding and abetting, “it is enough to show that the
defendant associated with the criminal venture, participated in it, and sought, by
his actions, to make it a success.” United States v. Boykin, 785 F.3d 1352, 1359
(9th Cir. 2015) (cleaned up). While “mere casual association with conspiring
people” is not enough, here the Government presented sufficient evidence
3 demonstrating that Saldana was an active participant in the methamphetamine
distribution enterprise and sought by his actions to make it successful. United
States v. Corona-Verbera, 509 F.3d 1105, 1119 (9th Cir. 2007) (citation omitted).
First, on July 23, 2015, Saldana was present for the negotiations between
“Sanchez,” another street dealer for Ochoa, and the CI. The CI and Saldana
discussed the CI’s alleged drug business and how much methamphetamine the CI
was hoping to purchase, and Saldana directed the CI to the 601 location to
complete the sale, where the CI successfully obtained the narcotics. Second, on
September 30, 2015, Saldana was present when the CI arrived at the 538 location
where the CI requested two ounces of methamphetamine from Saldana. Not
having the CI’s requested amount on him, Saldana directed the CI to Avelino
Villalba, another member of the conspiracy, who then connected the CI to Ochoa,
who finally effectuated the transaction. Considering the evidence in the light most
favorable to the Government, a reasonable factfinder could find that Saldana was
not only present for the drug transactions but acted with specific intent to make
them successful. Id.
3. Finally, we “review a jury’s . . . special findings for substantial
evidence,” and there is sufficient evidence for any rational trier of fact to make the
jury’s special quantity findings here for both Saldana’s conspiracy to distribute
methamphetamine charge and his two substantive distribution charges. United
4 States v. Navarrete-Aguilar, 813 F.3d 785, 793 (9th Cir. 2015) (cleaned up).
Because we have concluded there is sufficient evidence for Saldana’s conviction
for aiding and abetting both the July 23, 2015 and the September 30, 2015 sales,
which involved 27.49 grams and 115.19 grams of methamphetamine respectively,
we affirm the jury’s special quantity findings that the July and September
transactions involved at least five grams and fifty grams, respectively.
As for the jury’s finding that Saldana was responsible for at least fifty grams
of methamphetamine for his conspiracy conviction, the Government provided
evidence that Saldana was a reliable street seller for the conspiracy, often
completing the sale of his daily allocation of two to three grams of
methamphetamine every day of the conspiracy, which lasted for at least 40 days.
Conservatively, that amounts to at least 80 grams by itself. On top of this, Saldana
was regularly entrusted with up to six additional grams of methamphetamine per
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50368, 18-50408
Plaintiff-Appellee / D.C. No. Cross-Appellant, 2:17-cr-00122-SJO-6
v. MEMORANDUM* PEDRO GRANADOS SALDANA,
Defendant-Appellant / Cross-Appellee.
Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding
Argued and Submitted August 12, 2020 Pasadena, California
Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,** District Judge.
Pedro Granados Saldana appeals his conviction for conspiracy to distribute
at least fifty grams of methamphetamine and his convictions for distribution of at
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. least five and fifty grams of the same, aiding and abetting. The Government
cross-appeals Saldana’s 110-month sentence imposed by the district court. We
have jurisdiction under 18 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part
and vacate and remand in part.
1. The district court did not err by denying Saldana’s motion for
judgment of acquittal based on insufficient evidence for his conviction of
conspiracy to distribute methamphetamine, a decision we review de novo. See
United States v. Mincoff, 574 F.3d 1186, 1191-92 (9th Cir. 2009). Evidence “is
sufficient to support a conviction if, viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at 1192 (internal
citation omitted).
Here, it is uncontested that this case involves an established conspiracy to
distribute methamphetamine. “Once a conspiracy is established, the Government
can prove a defendant’s knowing participation with evidence of the defendant’s
connection with the conspiracy.” United States v. Esquivel-Ortega, 484 F.3d 1221,
1228 (9th Cir. 2007) (internal citations omitted). Even a “slight connection” will
suffice. Id. While “mere presence” around those involved with the conspiracy is
insufficient, here the evidence demonstrates that Saldana intentionally participated
in the conspiracy. United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th
2 Cir. 2001). Indeed, Saldana was present for at least two out of the ten controlled
drug sales carried out by the Government’s confidential informant (“CI”) and on
both occasions Saldana directed the CI to another member of the conspiracy who
then executed the deals. Further, the cooperating witness (“CW”) testified that
Saldana was a street seller for Giovanny Ochoa, who ran the drug sales from 538
West 82nd Street (“538”) and 601 West 82nd Street (“601”). The CW also
testified that Saldana ran the early morning shift and frequently gathered drugs
from Ochoa and the CW to deliver to the dealers covering later shifts. A rational
trier of fact could therefore plausibly find beyond a reasonable doubt that Saldana
had at least a “slight connection” to the conspiracy. Esquivel-Ortega, 484 F.3d at
1228; Herrera-Gonzalez, 263 F.3d at 1095.
2. Because we conclude there is sufficient evidence for a rational trier of
fact to find beyond a reasonable doubt that Saldana aided and abetted the
distribution of methamphetamine, “we will not disturb the jury’s finding of guilt”
on this charge. See United States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir. 2002).
To support a conviction for aiding and abetting, “it is enough to show that the
defendant associated with the criminal venture, participated in it, and sought, by
his actions, to make it a success.” United States v. Boykin, 785 F.3d 1352, 1359
(9th Cir. 2015) (cleaned up). While “mere casual association with conspiring
people” is not enough, here the Government presented sufficient evidence
3 demonstrating that Saldana was an active participant in the methamphetamine
distribution enterprise and sought by his actions to make it successful. United
States v. Corona-Verbera, 509 F.3d 1105, 1119 (9th Cir. 2007) (citation omitted).
First, on July 23, 2015, Saldana was present for the negotiations between
“Sanchez,” another street dealer for Ochoa, and the CI. The CI and Saldana
discussed the CI’s alleged drug business and how much methamphetamine the CI
was hoping to purchase, and Saldana directed the CI to the 601 location to
complete the sale, where the CI successfully obtained the narcotics. Second, on
September 30, 2015, Saldana was present when the CI arrived at the 538 location
where the CI requested two ounces of methamphetamine from Saldana. Not
having the CI’s requested amount on him, Saldana directed the CI to Avelino
Villalba, another member of the conspiracy, who then connected the CI to Ochoa,
who finally effectuated the transaction. Considering the evidence in the light most
favorable to the Government, a reasonable factfinder could find that Saldana was
not only present for the drug transactions but acted with specific intent to make
them successful. Id.
3. Finally, we “review a jury’s . . . special findings for substantial
evidence,” and there is sufficient evidence for any rational trier of fact to make the
jury’s special quantity findings here for both Saldana’s conspiracy to distribute
methamphetamine charge and his two substantive distribution charges. United
4 States v. Navarrete-Aguilar, 813 F.3d 785, 793 (9th Cir. 2015) (cleaned up).
Because we have concluded there is sufficient evidence for Saldana’s conviction
for aiding and abetting both the July 23, 2015 and the September 30, 2015 sales,
which involved 27.49 grams and 115.19 grams of methamphetamine respectively,
we affirm the jury’s special quantity findings that the July and September
transactions involved at least five grams and fifty grams, respectively.
As for the jury’s finding that Saldana was responsible for at least fifty grams
of methamphetamine for his conspiracy conviction, the Government provided
evidence that Saldana was a reliable street seller for the conspiracy, often
completing the sale of his daily allocation of two to three grams of
methamphetamine every day of the conspiracy, which lasted for at least 40 days.
Conservatively, that amounts to at least 80 grams by itself. On top of this, Saldana
was regularly entrusted with up to six additional grams of methamphetamine per
day to transfer to the sellers working the later shifts. Moreover, the jury found that
Saldana facilitated these larger volume methamphetamine transactions on July 23
and September 30, 2015, and there is evidence of other, large transactions
facilitated by his co-conspirators within the scope of the conspiracy. Viewing the
evidence in the light most favorable to the prosecution, “any rational trier of fact”
could find that the conspiracy’s distribution of at least fifty grams of
methamphetamine was reasonably foreseeable to Saldana and that it was in the
5 scope of his agreement when he joined the conspiracy. See Navarrete-Aguilar,
813 F.3d at 793, 795 (cleaned up).
4. The district court erred by departing from the 120-month mandatory
minimum for methamphetamine trafficking under 21 U.S.C. § 841(b)(1)(A)(viii)
after crediting Saldana ten months for time already served pursuant to a state court
sentence for related conduct.
The Government specifically objected and properly preserved the downward
adjustment on appeal, and we therefore review the district court’s decision to
depart from the mandatory minimum de novo. United States v. Vilchez, 967 F.2d
1351, 1353 (9th Cir. 1992), as amended (July 9, 1992). Though the Government
initially agreed with the district court that the court had the authority to adjust
Saldana’s mandatory 120-month sentence to account for the state sentence, the
Government reversed course before the court pronounced Saldana’s sentence and
objected to the departure because the state sentence had been fully discharged. See
United States v. Grissom, 525 F.3d 691, 694 (9th Cir. 2008). The district court
acknowledged the Government’s objection before proceeding to sentence Saldana
to only 110 months.
We conclude that the district court erred by reducing Saldana’s sentence by
ten months pursuant to U.S.S.G. § 5G1.3(b), which provides that if “a term of
imprisonment resulted from another offense that is relevant conduct to that instant
6 offense of conviction,” the court shall “adjust the sentence for a period of
imprisonment already served on the undischarged term of imprisonment”
(emphasis added). See also United States v. Turnipseed, 159 F.3d 383, 386–87
(9th Cir. 1998). Because Saldana’s state court sentence was fully discharged at the
time of his federal sentencing, the district court had no discretion to adjust
Saldana’s sentence below the mandatory minimum of 120 months provided under
21 U.S.C. § 841(b)(1)(A)(viii). See United States v. Sykes, 658 F.3d 1140, 1146
(9th Cir. 2011). Saldana’s additional constitutional challenges also fail because he
has not demonstrated that there is no rational basis for Congress’s distinction
between discharged and undischarged state sentences. See United States v.
Padilla-Diaz, 862 F.3d 856, 862 (9th Cir. 2017).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.