NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 28 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50353
Plaintiff-Appellee, D.C. No.
2:14-cr-00209-TJH-1
v.
ISMAEL GUTIERREZ VILAVAZO, AKA MEMORANDUM*
Ismael Gutierrez, AKA Mike Gutierrez,
AKA Mikey,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted November 8, 2016
Pasadena, California
Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.
Ismael Gutierrez Vilavazo appeals his conviction and sentence for
conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii),
846, aiding and abetting methamphetamine distribution, 18 U.S.C. § 2(a), and five
counts of knowingly and intentionally using a communications facility to commit a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
felony, 21 U.S.C. § 843(b). We have jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291, and we affirm.
1. Gutierrez contends that the district court erred by admitting Jorge
Huerta’s recorded statements because there was insufficient evidence that Huerta
was a co-conspirator. The government must prove to the district court by a
preponderance of the evidence “that there was a conspiracy involving the declarant
and the [defendant], and that the statement was made ‘during the course and in
furtherance of the conspiracy.’” Bourjaily v. United States, 483 U.S. 171, 175
(1987) (quoting Fed. R. Evid. 801(d)(2)(E)). In making these preliminary factual
findings, the court may consider all but privileged evidence, including the hearsay
statements themselves, regardless of admissibility. Id. at 178, 181. Due to its
presumptive unreliability, “a co-conspirator’s statement implicating the defendant
in the alleged conspiracy must be corroborated by fairly incriminating evidence.”
United States v. Silverman, 861 F.2d 571, 578 (9th Cir. 1988).
The district court did not err by admitting Huerta’s out-of-court statements
without first making the Bourjaily findings. “A district court has the discretion to
vary the order of proof” by “admitt[ing] the statement[s] . . . prior to the
presentation of independent evidence of the existence of the conspiracy.” United
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States v. Loya, 807 F.2d 1483, 1490 (9th Cir. 1987). Here, the district court noted
its discretion to delay ruling on the admissibility of Huerta’s statements and invited
Gutierrez to challenge them later, stating that they came in “subject to a motion to
strike.” As Gutierrez never moved to strike the statements, we review their
admission for plain error. See United States v. Bridgeforth, 441 F.3d 864, 869 (9th
Cir. 2006).
There was ample independent evidence that Gutierrez and Huerta conspired
to sell methamphetamine. To begin with, Gutierrez was actively involved in
setting the terms of the sale. Gutierrez told the informant that he had around two
pounds of methamphetamine but it was not “readily available” because he was
concerned that the police were investigating him. Gutierrez told the informant that
he would “get [him] in touch with one of his contacts or workers.” Gutierrez
instructed the informant to go alone to the meeting because Huerta “didn’t want
anybody else there.”
Gutierrez and the informant discussed a price of $450 per ounce. When
Huerta quoted the informant a price of “[$]600,” the informant asked Gutierrez to
“tell [Huerta] to . . . bring it down a bit, because . . . [they] had agreed it would be
less.” These exchanges corroborate Huerta’s later statement agreeing to honor the
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price quoted by Gutierrez, in which he told the informant, “if you talked to
[Gutierrez] about it, I can leave it at about that price, [$]450.”
Other independent evidence also shows Gutierrez’s role in the conspiracy as
an intermediary between the informant and Huerta. The informant initially asked
Gutierrez whether he could acquire the methamphetamine on credit or if he would
have to pay cash. Six days later, Gutierrez told the informant, “[Huerta] wants you
to pay him everything,” which the informant understood to mean, “he’s not going
to give me any credit on the drugs.”
Phone records further corroborate the existence of the conspiracy. Gutierrez
and Huerta spoke for two minutes immediately before Huerta first called the
informant to discuss the transaction. The next day, the informant called Gutierrez
to tell him that he had enough money for two ounces. Gutierrez informed him,
“I’ll tell [Huerta] . . . right now to call you.” Gutierrez then immediately made
several calls to Huerta and Huerta’s mother-in-law. The number and timing of
these calls suggest that they were attempts to convey the informant’s readiness to
purchase methamphetamine rather than innocuous communications with family
members. See United States v. Boykin, 785 F.3d 1352, 1359-60 (9th Cir. 2015),
cert. denied, 136 S. Ct. 272 (2015).
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Finally, when the informant expressed doubt about dealing solely with
Huerta, Gutierrez sought to reassure him, stating, “[T]hey’re my people.” Later,
the informant again asked, “[A]re you going to be there, because . . . I don’t know
[Huerta], and . . . the thing is to do the deal with you . . . and with him too, at the
same time.” Gutierrez responded, “[I]t’s the same thing, he’s my nephew.”
Gutierrez’s statements corroborate Huerta’s later statements to the informant that
he (Huerta) and Gutierrez “are the same” and “are all one hand.”
Because there was substantial independent evidence that corroborated
Huerta’s out-of-court statements implicating Gutierrez in the conspiracy, the court
did not abuse its discretion in admitting Huerta’s statements, let alone commit
plain error.
2. Gutierrez argues that there was insufficient evidence to support both the
conspiracy and the aiding and abetting counts. In reviewing this claim, the
“critical inquiry” is “whether, 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, 318-19 (1979).
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“In order to prove a conspiracy under 21 U.S.C. § 846, the prosecution must
prove that: (1) there was an agreement to accomplish an objective made criminal
by § 841(a)(1), which prohibits the knowing or intentional distribution of or
possession with intent to distribute a controlled substance; and (2) the defendant
intended to commit the underlying offense.” United States v. Suarez, 682 F.3d
1214, 1219 (9th Cir. 2012). There was sufficient evidence, discussed above, that
Gutierrez and Huerta entered into an agreement. The government did not need to
prove that anyone committed a crime. “[P]roof of an overt act in furtherance of the
conspiracy is not required in order to prove a violation of [21 U.S.C.] § 846; proof
of an agreement alone is sufficient.” Id. (citing United States v. Shabani, 513 U.S.
10, 15-16 (1994)).
The elements of aiding and abetting are “(1) that the accused had the specific
intent to facilitate the commission of a crime by another, (2) that the accused had
the requisite intent of the underlying substantive offense, (3) that the accused
assisted or participated in the commission of the underlying substantive offense,
and (4) that someone committed the underlying substantive offense.” United
States v. Shorty, 741 F.3d 961, 970 (9th Cir. 2013) (quoting United States v. Singh,
532 F.3d 1053, 1057-58 (9th Cir. 2008)). Here, the evidence “was enough to show
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that [Gutierrez] associated with the criminal venture, participated in it, and sought,
by his actions, to make it a success.” Boykin, 785 F.3d at 1359.
Gutierrez argues that there was no evidence that Huerta was “Moreno,” the
person in the white Chrysler 300 who delivered methamphetamine to the
informant. During closing argument, defense counsel repeatedly told the jury that
Moreno was in fact Huerta. Regardless, it is irrelevant whether Huerta or an
associate of his conducted the exchange. Gutierrez does not dispute “that someone
committed the underlying substantive offense.” Shorty, 741 F.3d at 970 (emphasis
added). The identity of that person has no bearing on the evidence of Gutierrez’s
involvement.
3. Gutierrez also challenges the district court’s admission of two other
pieces of evidence: hearsay evidence that he had argued with someone about some
lost drugs, and that he had ordered another person to deliver drugs, and, six months
after the charged offense, someone using Huerta’s wife’s phone visited websites
“regarding narcotics” nine times over a 10-day period. The admission of this
evidence may well have been improper, but any errors were harmless beyond a
reasonable doubt. In both instances the testimony was brief and the other evidence
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of Gutierrez’s guilt overwhelming. See, e.g., United States v. James, 139 F.3d 709,
712 (9th Cir. 1998).
4. Gutierrez’s challenge to his convictions for using a communications
facility to commit a felony depends on reversal of the conspiracy and aiding and
abetting counts. Thus, his argument necessarily fails because we affirm his
convictions on those counts.
5. Finally, Gutierrez asserts that the district court committed procedural
error by failing to determine the applicable range under the Sentencing Guidelines
before sentencing him. A district court abuses its discretion by “failing to calculate
(or improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S.
38, 51 (2007). In his reply brief, however, Gutierrez concedes that “[t]he district
court adopted the guidelines calculations contained within the [pre-sentence
report].” He argues instead that the base offense level was calculated incorrectly.
Gutierrez reasons that because the jury found the quantity of actual
methamphetamine to be less than 50 grams, his base offense level was 28 rather
than 30. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(6) (U.S. Sentencing
Comm’n 2014).
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Gutierrez stipulated that the substance sold to the informant was 87% pure
methamphetamine. Therefore, the district court reasonably calculated the base
offense level using “ice” rather than regular methamphetamine because the mixture
was “of at least 80% purity.” Id. § 2D1.1 cmt. C; see United States v. Lee, 725
F.3d 1159, 1166 n.7 (9th Cir. 2013) (explaining that, “[f]or example, a 10 KG
mixture of methamphetamine of 80% purity would be 10 KG of
Methamphetamine, 8 KG of Methamphetamine (actual), and 10 KG of Ice”). The
base offense level for ice is calculated based on “the entire weight of [the]
mixture.” U.S. Sentencing Guidelines Manual § 2D1.1 cmt. A, B (U.S. Sentencing
Comm’n 2014). Since Gutierrez stipulated that the methamphetamine mixture
weighed 55.9 grams, the district court properly determined the base offense level
to be 30, based on 55.9 grams of ice. See id. § 2D1.1(c)(5). There is no
inconsistency between the district court’s calculation and the jury’s finding that
“the . . . amount of ‘pure’ or ‘actual’ methamphetamine” was “less than fifty
grams.” Thus, United States v. Pimentel-Lopez, 828 F.3d 1173 (9th Cir. 2016), is
inapplicable.
AFFIRMED.
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