FILED
UNITED STATES COURT OF APPEALS
MAY 18 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10171
Plaintiff - Appellee, D.C. No. 2:09-cr-01509-NVW-7
District of Arizona,
v. Phoenix
MARIO BENITEZ,
ORDER
Defendant - Appellant.
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
Appellant Benitez’s petition for panel rehearing is GRANTED. The
memorandum disposition filed October 2, 2015 is withdrawn and replaced by the
memorandum disposition filed contemporaneously with this order.
The pending petition for rehearing en banc is now moot. The parties may
file additional petitions for panel rehearing or rehearing en banc.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10171
Plaintiff - Appellee, D.C. No. 2:09-cr-01509-NVW-7
v.
MEMORANDUM*
MARIO BENITEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted August 11, 2015
San Francisco, California
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
Mario Benitez appeals his 144-month sentence, imposed following his
convictions for possession with intent to distribute a controlled substance (21
U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)) and conspiracy to possess a controlled
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
substance with intent to distribute (21 U.S.C. § 846).1 We vacate the sentence and
remand in light of the recent sentence reduction of Benitez’s co-defendant Marcela
Benitez-Salcido.
At the resentencing, the district court varied Benitez’s sentence downward
because it considered him to be substantially less culpable than Benitez-Salcido.
Recently, the district court reduced Benitez-Salcido’s sentence pursuant to
Amendment 7822 and, in response to our inquiry, stated that it “welcomes the
opportunity to” revisit Benitez’s sentence to consider whether that reduction
created an unreasonable disparity between the two sentences. In light of the
district court’s statement, we vacate the sentence and remand for resentencing on
an open record.
Benitez also raises various other challenges to his sentence. Because we
vacate and remand, we need not reach the majority of these arguments. For the
1
Benitez was also convicted of conspiracy to import controlled substances
(21 U.S.C. § 963). The district court sentenced him to 144 months imprisonment
for the three convictions. Benitez appealed, and this court vacated the conspiracy
to import controlled substances conviction for lack of evidence. United States v.
Benitez, 500 F. App’x 660, 662-63 (9th Cir. 2012). On remand, the district court
imposed the same 144-month sentence for the remaining two convictions as it had
for all three convictions.
2
Amendment 782 reduced by two the base offense level for certain drug
crimes. United States Sentencing Commission, Guidelines Manual, supp. app’x.
C, amend 782 (2014).
2
benefit of the district court, however, we address Benitez’s argument that the
district court erred in assigning him a base offense level of 36 because there was
insufficient evidence to attribute to him at least 50 kg of cocaine. For sentencing
purposes, the government “is required to prove the approximate quantity [of a
controlled substance] by a preponderance of the evidence.” United States v. Culps,
300 F.3d 1069, 1076 (9th Cir. 2002) (internal quotations and citations omitted).
Here, a witness testified 1) that he purchased drugs from Benitez’s organization on
six or seven occasions; 2) that he once bought 20 kg of cocaine from the
organization and; 3) that when traveling from Florida to California to purchase
cocaine, he usually carried enough cash with him to purchase approximately 10 kg
worth. In addition, on one occasion the witness was arrested with approximately
11 kg of cocaine after buying from the organization. This evidence suffices to
attribute at least 50 kg of cocaine to Benitez.3
The sentence is VACATED and the case REMANDED for resentencing.
3
Benitez also argues that the two pre-sentence reports committed various
errors in attributing 50.3 grams of crack cocaine to him. Even if Benitez is right,
these alleged errors are harmless, as Benitez’s base offense level is still 36 whether
one attributes to him 50.3 or zero grams of crack cocaine.
3