FILED
UNITED STATES COURT OF APPEALS JUL 12 2017
MOLLY C. DW YER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-30296
Plaintiff-Appellee, D.C. No.
2:14-cr-00023-DLC-1
v. District of Montana,
Butte
ANGEL ITURBE-GONZALEZ,
Defendant-Appellant. ORDER AMENDING
Before: PAEZ and CALLAHAN, Circuit Judges, and ENGLAND,* District Judge.
The panel has voted to deny the petition for rehearing. Judge Paez and
Judge Callahan vote to deny the petition for rehearing en banc and Judge England
recommends denial of the petition for rehearing en banc. The full court has been
advised of the petition for rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
The memorandum disposition filed on February 14, 2017 is amended. A
amended memorandum disposition is being filed concurrently with this order. No
further petitions for rehearing will be entertained.
The petition for rehearing and for rehearing en banc are denied.
*
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
FILED
NOT FOR PUBLICATION
JUL 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30296
Plaintiff-Appellee, D.C. No. 2:14-cr-00023-DLC-1
v. AMENDED
MEMORANDUM*
ANGEL ITURBE-GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted February 6, 2017**
Seattle, Washington
Before: PAEZ and CALLAHAN, Circuit Judges, and ENGLAND,*** District
Judge.
*
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. See Fed. R. App. P. 34(a)(2).
***
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
Angel Iturbe-Gonzalez appeals his jury trial conviction for conspiracy to
distribute and possession with intent to distribute a controlled substance, and his
151-month sentence. Specifically, he alleges that: (1) the district court erred when
it admitted evidence of a prior arrest in 2012 and his subsequent arrest in 2015; (2)
the district court erred when it instructed the jury it could find that Iturbe-Gonzalez
conspired to distribute and possessed with intent to distribute either
methamphetamine or heroin, where the indictment charged Iturbe-Gonzalez with
conspiracy and possession of both methamphetamine and heroin; and (3) the
district court erred in denying Iturbe-Gonzalez safety valve relief upon sentencing.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not abuse its discretion when it admitted
evidence of Iturbe-Gonzalez’s 2012 arrest with an appropriate cautionary
instruction. The evidence was admissible under Federal Rules of Evidence
404(b).1 See United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002) (citations
omitted) (providing that other acts evidence “may be admitted if: (1) the evidence
tends to prove a material point; (2) the other act is not too remote in time; (3) the
evidence is sufficient to support a finding that defendant committed the other act;
and (4) (in certain cases) the act is similar to the offense charged.”). Moreover, the
1
All future references to a “Rule” or “Rules” are to the Federal Rules of
Evidence.
2
district court properly considered whether the probative value of that evidence was
substantially outweighed by its prejudicial impact under Rule 403 when it found
evidence concerning the quantity of drugs, types of drugs, and use of concealments
probative, but deemed evidence concerning firearms prejudicial and excluded it.
Id. Though brief, this analysis is sufficient, and the district court thus acted within
its discretion in admitting the evidence.2
The district court likewise did not abuse its discretion when it admitted
evidence of Iturbe-Gonzalez’s 2015 arrest with the same cautionary instruction.
The 2015 arrest was not an “other act” under Rule 404(b), but was necessary to tell
the story of the charged crime and was thus inextricably intertwined with the
conduct underlying the charged crime. As such, it was not subject to the
limitations of Rule 404(b). See, e.g., United States v. Williams, 291 F.3d 1180,
1189 (9th Cir. 2002) (overruled on other grounds by United States v. Gonzales,
506 F.3d 940 (9th Cir. 2007) (en banc)). We thus find that the district court
2
Regardless, even if the Rule 403 analysis was somehow deficient, which it
was not, any error was harmless because the evidence was highly probative, and
further because there was additional overwhelming evidence against Iturbe-
Gonzalez aside from his 2012 arrest.
3
properly admitted evidence of the 2015 arrest as relevant evidence under
Rule 402.3
2. We further hold that the district court did not abuse its discretion
when it instructed the jury that it could find Iturbe-Gonzalez conspired to distribute
and possessed with intent to distribute either methamphetamine or heroin, even
though the indictment charged Iturbe-Gonzalez with conspiracy and possession
with intent to distribute both methamphetamine and heroin. Type and quantity of
drugs are not elements of the crimes with which the government charged Iturbe-
Gonzalez, and thus are not elements that the government had to prove. See, e.g.,
United States v. Toliver, 351 F.3d 423, 431 (9th Cir. 2003) (“simply because the
government included drug quantity and type allegations in [its indictment], that did
not mean that those factual allegations must be treated as formal elements of the
basic offense under section 841(a)(1)”); United States v. Vera, 770 F.3d 1232,
1249–50 (9th Cir. 2014) (explaining that quantity and type are the “functional
equivalent of an element” for sentencing purposes and do not affect the validity of
the base conviction). The district court thus permissibly concluded that although
the indictment was pled in the conjunctive, it was appropriate to instruct the jury
3
Any error or deficiency in the district court’s Rule 403 analysis of the
2015 arrest would have been harmless.
4
that Iturbe-Gonzalez could be found guilty of the charged crime if it found the
government proved its case with regard to either controlled substance.4
3. The district court did not commit clear error in denying Iturbe-
Gonzalez his request for safety valve relief. A defendant must meet five
requirements to obtain safety valve relief: (1) the defendant does not have more
than one criminal history point; (2) the defendant did not use violence or credible
threats thereof, or have possession of a firearm or other dangerous weapon in
connection with the offense; (3) “the offense did not result in death or serious
bodily injury to any person”; (4) the defendant was not an organizer or leader in
the offense and was not engaged in a continuing criminal enterprise; and–as is
relevant here–(5) “the defendant has truthfully provided to the Government all
information and evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or plan . . . .” 18
U.S.C. § 3553(f); U.S.S.G. § 5C1.2. Though it was undisputed that Iturbe-
Gonzalez satisfied criteria (1) through (4), testimony revealed that he did not fully
and truthfully disclose all information surrounding his offense as required by
§ 3553(f)(5) and the sentencing guidelines. Iturbe-Gonzalez plainly stated that he
would not answer questions related to one of the potential players in the charged
4
In any event, any error was harmless as the jury ultimately found both
drug quantities.
5
offenses. Because he refused to provide all information he had concerning the
individual, his relationship with the individual, and the quantities of drugs he and
the individual handled, the district court properly found that he did not meet the
fifth of five safety valve requirements and therefore properly denied safety valve
relief.
Appellant’s conviction and sentence are AFFIRMED.
6