NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 14 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-618 D.C. No. Plaintiff - Appellee, 2:21-cr-00132-JCC-1 v. MEMORANDUM*

FERNANDO LOPEZ-ARMENTA,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Senior District Judge, Presiding

Argued and Submitted June 5, 2024 Portland, Oregon

Before: RAWLINSON, FORREST, and SUNG, Circuit Judges.

Fernando Lopez-Armenta appeals his convictions for possession of a

controlled substance with intent to distribute in violation of 21 U.S.C. § 841 (a)(1),

(b)(1)(A), and for carrying a firearm during the commission of a drug trafficking

crime in violation of 18 U.S.C. § 924 (c)(1)(A)(i). We have jurisdiction under 28

U.S.C § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The district court did not abuse its discretion by declining to instruct

the jury on the lesser-included offense of simple possession. A defendant is entitled

to a lesser-included offense instruction if, among other things, “the evidence would

permit a jury rationally to find the defendant guilty of the lesser offense and acquit

him of the greater.” United States v. Medina-Suarez, 30 F.4th 816, 819 (9th Cir.

2022) (quoting United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007))

(cleaned up).1

We review the district court’s “factual inquiry” as to whether “the record

contains evidence that would support a conviction of the lesser offense” for abuse

of discretion. Id. at 820 (quoting Arnt, 474 F.3d at 1163) (cleaned up). Where

“evidence used to prove an element common to both the greater and lesser offenses

necessarily prove[s] the distinct element of the greater offense[,] . . . . a jury could

not rationally find the defendant guilty of the lesser offense without also finding

him guilty of the greater offense.” Id. at 821–22. “[A] district court may not weigh

1 Lopez-Armenta argued that he was entitled to a lesser-included offense instruction based on our holding that “a defendant is entitled to an instruction concerning his theory of the case if it is legally sound and evidence in the case makes it applicable, even if the evidence is weak, insufficient, inconsistent, or of doubtful credibility. A defendant needs to show only that there is evidence upon which the jury could rationally sustain the defense. . . .” United States v. Kayser, 488 F.3d 1070, 1076 (9th Cir. 2007) (internal quotation marks and citations omitted). That rule is not applicable here, because it concerns actual defenses or theories that defendants present. Rather, the specific rule for lesser-included offenses governs.

2 23-618 the evidence in determining whether to give a lesser included offense instruction.”

United States v. Hernandez, 476 F.3d 791, 800 (9th Cir. 2007).

The uncontested evidence at trial established that Lopez-Armenta contacted

a confidential informant concerning the informant’s need for fentanyl pills and

arranged to meet with the informant. Police arrested Lopez-Armenta at this

meeting. Lopez-Armenta had a gun, ammunition, about $3,500 in cash, and

confessed to possessing approximately 429.6 grams of fentanyl pills recovered

from his car. Considering all the uncontested evidence, the district court did not

abuse its discretion in concluding that no rational juror could find that Lopez-

Armenta possessed the 429.6 grams of fentanyl for personal use. See id. at 798

(“[W]here there is a large quantity of a drug and other evidence tending to

establish distribution[,] . . . . once a jury determines that a defendant possessed the

drugs, it could not rationally conclude that there was no intent to distribute.”

(citations and internal quotation marks omitted)).

2. The district court did not abuse its discretion by allowing the

informant to testify in partial disguise wearing a COVID-style mask. See United

States v. de Jesus-Casteneda, 705 F.3d 1117, 1119 (9th Cir. 2013) (“The

appropriate standard of review for the district court’s decision to allow the

[confidential informant to testify in] disguise is abuse of discretion.”), amended on

denial of reh’g en banc by 712 F.3d 1283 (9th Cir. 2013). “A criminal defendant’s

3 23-618 right to cross-examination includes the right to face physically those who testify

against him and to ensure that the witness gives his statement before the jury so the

jury may observe the witness’s demeanor.” Id. This requirement may be dispensed

with when “necessary to further an important public policy and only where the

reliability of the testimony is otherwise assured.” Maryland v. Craig, 497 U.S. 836,

850 (1990).

Here, the mask disguise furthered the important public policy of ensuring the

informant’s safety. See de Jesus-Casteneda, 705 F.3d at 1120 (holding that a

confidential informant’s disguise “was necessary to further an important state

interest, namely a witness’s safety . . . . given his continuing involvement in

[cartel] drug investigations as an undercover agent.”). Although only part of the

informant’s face was visible when wearing the mask, the remaining reliability

factors were met. See id. at 1121 (“[T]he disguise in the form of a wig and

mustache did not violate the Confrontation Clause” where “the reliability of the

[informant’s] testimony was otherwise assured . . . .”). The informant was

physically present at trial, testified under oath, was subject to cross-examination

while Lopez-Armenta could see him, and the jury was able to hear his voice, see

his eyes, and observe his body language. See id. (listing these as “key elements of

one’s demeanor that shed light on credibility”).

AFFIRMED.

4 23-618