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United States v. Lemus

United States Court of Appeals, Ninth Circuit

March 2, 2016

United States of America, Plaintiff-Appellee,
v.
Rogelio Lemus, AKA Sky, Defendant-Appellant.

          Argued and Submitted February 2, 2016 Pasadena, California

          Amended June 28, 2016

         Appeal 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.

         SUMMARY[*]

         Criminal Law

         The 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.

         In the 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. § 841(b)(1)(C).

         The 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.

         ORDER

         The 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.

         The Opinion filed on March 2, 2016 is replaced with the concurrently filed amended opinion.

         The petitions for rehearing and rehearing en banc are otherwise DENIED. No further petitions for rehearing will be accepted.

          OPINION

          M. SMITH, Circuit Judge

         Defendant 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).

         FACTS AND PRIOR PROCEEDINGS

         In 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 sale.

         On May 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 pound.

         After 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 ...


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