FILED
NOT FOR PUBLICATION FEB 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10367
Plaintiff - Appellee, D.C. No. 1:11-cr-00128-HG-1
v.
MEMORANDUM *
AMBROSIO SANTOS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Submitted February 11, 2013 **
Honolulu, Hawaii
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
Ambrosio Santos appeals from the 120-month sentence imposed following
his guilty-plea conviction for conspiracy to distribute and to possess with intent to
distribute in excess of 50 grams of methamphetamine, in violation of
*
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).
21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
We reject Santos’s argument that he failed to receive a fair evidentiary
hearing in violation of his due process rights. The record shows the district court
did not rely on unreliable hearsay to find Santos ineligible for safety valve relief.
And contrary to Santos’s allegation, there was no improper prosecutorial vouching
in this case, where the alleged instances occurred before a sentencing judge rather
than a jury. See E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994)
(“[I]n a bench trial, the risk that a verdict will be affected unfairly and substantially
by the admission of irrelevant evidence is far less than in a jury trial.”). Finally,
the record does not provide support for Santos’s allegation that the prosecution
knowingly used perjured testimony at the evidentiary hearing.
Santos also contends that the district court erred in its application of the
Sentencing Guideline range by attributing to him the drugs found in his
co-defendant’s suitcase. Contrary to Santos’s argument, the district court did not
apply the incorrect standard of proof, nor did the court apply an “assumption of
risk” analysis in determining drug quantity. United States v. Gonzalez, 528 F.3d
1207, 1214 (9th Cir. 2008) (“The district court at sentencing must find drug
quantities by a preponderance of the evidence through sufficiently reliable
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information.”). Because the quantity of drugs in Santos’s co-defendant’s suitcase
was reasonably foreseeable and “within the scope of the criminal activity that he
jointly undertook,” the district court did not err in holding him accountable for it.
U.S.S.G. § 1B1.3(a)(1)(B) cmt. n.2. It was not necessary to establish the
foreseeability of the quantity of drugs beyond a reasonable doubt because the
quantity is not a fact “necessary to support a sentence exceeding the maximum
authorized by the facts established by [Santos’s] plea.” United States v. Booker,
543 U.S. 220, 244 (2005).
Based on the foregoing, Santos’s claim of cumulative error also fails. See
United States v. Gutierrez, 995 F.2d 169, 173 (9th Cir. 1993) (no cumulative error
where defendant failed to identify single error).
AFFIRMED.
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