FILED
NOT FOR PUBLICATION JUL 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30271
Plaintiff - Appellee, D.C. No. 3:10-cr-05723-BHS-3
v.
MEMORANDUM*
FABIAN MENDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted July 11, 2013**
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
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 Donald E. Walter, Senior District Judge for the United
States District Court for the Western District of Louisiana, sitting by designation.
Defendant-Appellant Fabian Mendez appeals his jury conviction of
conspiracy to distribute and possession of 500 grams of methamphetamine.
Mendez argues that there was insufficient evidence for a jury to convict him of
those charges. Mendez failed to raise this issue at trial. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm Mendez’s conviction on both counts.
Because Mendez failed to move for a judgment of acquittal, we review his
claim for plain error. See United States v. Pelisamen, 641 F.3d 399, 408-09 (9th
Cir. 2011). “The plain-error standard of review dictates that reversal is warranted
only where there has been (1) error; (2) that is plain; (3) that affects substantial
rights; and (4) where the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 404. Here, there is no error, let alone
plain error.
There is sufficient evidence 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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The evidence showed that Mendez and two
co-defendants went together to meet an informant. The informant was told that
Mendez would be delivering the drugs to him. Mendez asked to see the money
before giving the drugs to the informant and then told the informant where the
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drugs were located. Moreover, after Mendez was arrested, he waived his Miranda
rights and admitted that he handled and delivered methamphetamine. The
evidence demonstrated that there was an existing conspiracy to distribute
methamphetamine and that Mendez joined the conspiracy by willfully participating
in a controlled sale of three pounds of methamphetamine. See United States v.
Salazar, 5 F.3d 445, 446 (9th Cir. 1993) (noting “the requirement of reasonable
foreseeability . . . does not apply to conduct that the defendant personally
undertakes” and that the defendant “is responsible for the drugs that came through,
even if he did not know what drugs they were”).
AFFIRMED.
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