FILED
NOT FOR PUBLICATION APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10501
Plaintiff - Appellee, D.C. No. 2:09-cr-01114-GMS-2
v.
MEMORANDUM*
JOSE BENJAMIN HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted April 19, 2012**
San Francisco, California
Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.
Defendant Jose Benjamin Hernandez appeals the district court’s imposition
of a sentence of 235 months’ imprisonment following his guilty plea to conspiracy
to possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
§§ 841 and 846, and to possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841. We affirm.
1. The district court did not clearly err by finding that it was "reasonably
foreseeable" that Defendant’s co-conspirator would possess a firearm under
U.S.S.G. §§ 1B1.3(a)(1)(B), 2D1.1(b)(1). See United States v. Ortiz, 362 F.3d
1274, 1275 (9th Cir. 2004) (explaining the findings that a district court must
make). The sentencing transcript makes clear that the district court found that,
whether Defendant or the government had the burden of proof, the evidence
overwhelmingly supported a finding of reasonable foreseeability. We agree.
2. The district court did not otherwise err at sentencing. See generally
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). The district
court adequately considered the factors under 18 U.S.C. § 3553, and its imposition
of a sentence at the low end of the Guidelines range was reasonable.
AFFIRMED.
2