United States v. Jose Pena , 675 F. App'x 735 ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10099
Plaintiff - Appellee, D.C. No. 2:10-cr-00468-JAM-1
v.
JOSE PENA, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted January 12, 2017**
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Erickson, District Judge for the U.S. District
Court for the District of North Dakota, sitting by designation.
Jose Pena appeals from the judgment following his jury conviction and
sentence on one count of conspiracy to manufacture, distribute, or possess with
intent to distribute at least 1,000 marijuana plants in violation of 21 U.S.C. §§ 846
and 841(a)(1), and one count of manufacturing at least 1,000 marijuana plants in
violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Pena first asserts that the district court erred by sustaining six of the
government’s hearsay objections during Pena’s testimony. Pena argues that, to
support his entrapment defense, he should have been permitted to testify to the
content of conversations between him and a confidential informant. Pena, however,
never made an offer of proof as to what this excluded testimony would have been.
“In the absence of an offer of proof of what the testimony would have been . . .
reversal will lie only where there is plain error.” United States v. Kupau, 781 F.2d
740, 745 (9th Cir. 1986). Pena has not shown that the exclusion of his objected-to
testimony affected his substantial rights or seriously affected the “fairness,
integrity, or public reputation of judicial proceedings.” United States v. Conti, 804
F.3d 977, 981 (9th Cir. 2015) (quoting United States v. Olano, 507 U.S. 725, 736
(1993)). Accordingly, the district court did not commit plain error by sustaining the
government’s objections.
2
Next, Pena contends that there was insufficient evidence to support the
jury’s finding that the charged marijuana conspiracy involved at least 1,000 plants,
which triggered a ten-year mandatory minimum sentence. The jury’s finding must
be upheld if “after 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We review de novo a district court’s denial of a motion for acquittal based on
sufficiency of the evidence. United States v. Wanland, 830 F.3d 947, 952 (9th Cir.
2016).
Here, there was ample evidence to support the jury’s finding. The
government agents who conducted the raid on the grow site, who also had
extensive experience investigating marijuana-related crimes, counted 1,019 plants
at the site. The touchstone is “readily observable evidence of root formation,” not
the existence of leaves, as Pena urges. See United States v. Robinson, 35 F.3d 442,
446 (9th Cir. 1994) (quotation marks omitted). The agents testified to their
involvement in the plant count, how they did it, what qualified as a plant, and
specifically testified to the number that had “viable root balls.” Pena’s counsel
cross-examined the agents on this point. Accordingly, the record contained
3
sufficient evidence for the jury to find that the conduct involved at least 1,000
plants.
Pena’s third argument is that the district court erred by failing to instruct the
jury on the definition of a “plant.” As Pena did not object to the jury instructions at
the time they were given, the failure to give a specific jury instruction is reviewed
for plain error. Conti, 804 F.3d at 981. Pena has failed to show that any error in the
jury instructions affected his substantial rights or seriously affected the “fairness,
integrity, or public reputation of judicial proceedings.” Id. (quoting Olano, 507
U.S. at 736). Thus, the district court’s jury instructions were not plainly erroneous.
Pena’s final argument is that the district court erred by applying a four-level
aggravating role enhancement to Pena’s sentencing calculation. Under United
States Sentencing Guidelines § 3B1.1(a), four levels are added to an offender’s
offense level “[i]f the defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive.” We “review
for clear error a district court’s determination that a defendant was an ‘organizer or
leader’ for purposes of enhancement under U.S.S.G. § 3B1.1.” United States v.
Berry, 258 F.3d 971, 977 (9th Cir. 2001).
Pena asserts that there were not five participants in the criminal activity.
While Pena was convicted, and three co-defendants pleaded guilty, the last co-
4
defendant, Leonardo Contreras, was acquitted. A preponderance standard,
however, rather than a reasonable doubt standard, applies to the district court’s
finding that Contreras participated in the criminal activity. A person “may still be a
participant in criminal activity even though not criminally convicted.” United
States v. Dota, 33 F.3d 1179, 1189 (9th Cir. 1994). The district judge, who was
present for all trial proceedings regarding Contreras, found by a preponderance of
the evidence that he qualified as a participant despite his acquittal. In fact, there
was testimony from the undercover agents that Contreras provided supplies to the
grow site and participated in the criminal strategy. Accordingly, the findings that
there were five participants and that Pena was the organizer or leader are not
clearly erroneous.
AFFIRMED.
5