and Submitted February 2, 2016 Pasadena, California
Amended June 28, 2016
from the United States District Court No.
2:13-cr-00825-BRO-1, for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Michael Tanaka (argued), Deputy Federal Public Defender,
Hillary Potashner, Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.
Stephen G. Wolfe (argued), Assistant United States Attorney,
Sheila Nagaraj, Assistant United States Attorney, Lawrence S.
Middleton, Assistant United States Attorney, Chief, Criminal
Division, Eileen M. Decker, United States Attorney, Los
Angeles, California, for Plaintiff-Appellee.
Before: STEPHEN R. REINHARDT, RICHARD A. PAEZ, and MILAN D.
SMITH, JR., Circuit Judges.
panel replaced an opinion filed March 2, 2016, with an
amended opinion affirming in part, vacating in part and
remanding for resentencing in a case in which the defendant
was convicted of possession with intent to distribute more
than 50 grams of methamphetamine; and otherwise denied a
petition for panel rehearing and, on behalf of the court, a
petition for rehearing en banc.
amended opinion, the panel affirmed in part, vacated in part,
and reversed in part, and remanded for resentencing. Viewing
the evidence in the light most favorable to the government,
the panel held that a rational trier of fact could have found
beyond a reasonable doubt that the defendant possessed
methamphetamine with intent to sell it, but that no
reasonable factfinder could have determined beyond a
reasonable doubt that he possessed more than 50 grams of
methamphetamine. The panel wrote that it would be a bridge
too far to allow a jury to extrapolate from comparison drugs
that were not from activity related to the defendant or a
conspiracy in which the defendant is involved. The panel
explained that a 90% level of purity would more than suffice
to support the jury's quantity determination, if
adequately connected to the drugs concerning which the
defendant had constructive possession, but that the
government failed to include evidence connecting that purity
level to the defendant. The panel remanded for resentencing
pursuant to the statutory range set forth in 21 U.S.C. §
panel held that the district court did not abuse its
discretion in deciding not to declare a mistrial due to an
FBI agent mentioning the name of the defendant's gang,
where the district court immediately sustained the
defendant's objection and ordered the jury to disregard
it, carefully examined a juror to ensure that she could
disregard the information, and gave a closing instruction
limiting the jury's use of the gang information.
full court has been advised of the petition for rehearing en
banc and no judge has requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35.
Opinion filed on March 2, 2016 is replaced with the
concurrently filed amended opinion.
petitions for rehearing and rehearing en banc are otherwise
DENIED. No further petitions for rehearing will be accepted.
SMITH, Circuit Judge
Rogelio Lemus appeals his conviction for possession with
intent to distribute more than 50 grams of methamphetamine.
Because we conclude that insufficient evidence supported the
jury's quantity determination, we reverse in part and
remand for resentencing pursuant to the statutory range set
forth in 21 U.S.C. § 841(b)(1)(C).
AND PRIOR PROCEEDINGS
early May of 2011, FBI informant Ana Montano was dispatched
to a bar to meet with Defendant Rogelio Lemus. Lemus, seeing
Montano's gang tattoo, volunteered that he was a member
of the same gang, and asked Montano if she knew the clique to
which he belonged. Montano told him that she was looking for
somebody who could supply ounce- quantities of
methamphetamine. Lemus responded that he had a pound for
16, 2011, Montano made a recorded call to Lemus. She stated
that she wanted to buy two ounces. Lemus responded:
"Just two? . . . I'm going to tell the guy, because,
well, you know, the bags have to be torn up, you
understand?" On May 18, 2011, Montano and Lemus arranged
to meet to carry out the sale and agreed to a price for the
two ounces, but Lemus was delayed by the absence of his
associate. When he finally arrived, Lemus, consistent with
his initial offer of a pound and his earlier hesitancy to
"tear up" the bags, but contrary to his agreement
earlier that day to sell a smaller quantity, stated that he
was unable to sell the methamphetamine in ounce quantities
because they only sold it by the pound. Lemus offered to give
Montano a sample, but Montano demurred, saying that her buyer
would not trust that the sample was the same quality as the
the meeting, FBI agents followed Lemus to his house, and were
able to identify him from the motor vehicle records for his
truck. The agents did not conduct a traffic stop, and did not
obtain a search warrant to search for drugs. No drugs were
seen or observed on the date of the meeting, and Montano did
not believe that Lemus had the pound of ...