Rodriguez

FILED

NOT FOR PUBLICATION DEC 23 2009

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES, No. 06-10076

Plaintiff-Appellee, D.C. No. CR-03-00156-WHA

v.

MEMORANDUM *

EFREN RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding

Argued and Submitted October 9, 2009 San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and SHADUR, ** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation. Efren Rodriguez ('Rodriguez') appeals (1) his criminal conviction, after a

jury trial, on eight counts of aiding and abetting possession, with the intent to

distribute, methamphetamine (hereafter referred to by the colloquial term 'meth')

and one count of…

MEMORANDUM **

Efren Rodriguez (“Rodriguez”) appeals (1) his criminal conviction, after a jury trial, on eight counts of aiding and abetting possession, with the intent to distribute, methamphetamine (hereafter referred to by the colloquial term “meth”) and one count of maintaining a drug-involved premises and (2) his resulting sentence. We affirm.

Background

Rodriguez was tried and convicted of the above-described eight meth-related counts in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 1 (Counts Eight to Fifteen) and one count of maintaining a drug-involved premises in violation of 21 U.S.C. § 856 (Count Sixteen). He was sentenced to 108 months’ concurrent imprisonment on each count, followed by five years’ supervised release, and was also ordered to pay a special assessment of $900 and a $20,000 fine.

Between November 30, 2001 and May 20, 2003 Rodriguez owned the Puerto Vallarta Restaurant in Santa Rosa, California. Unknown to him, one of his customers, Jesus Ontiveros Castillo (“Castillo”), was a confidential informant for the Drug Enforcement Administration (“DEA”). Before April 2002 Castillo and Rodriguez had conversations in which Rodriguez told Castillo that he…

dissenting in part:

I concur in the disposition, except as to count 11 of the Indictment, charging Efren Rodriguez with possession with intent to distribute and distribution of 152.1 grams of methamphetamine on August 12, 2002. I would hold that there was insufficient evidence to support a conviction on an aiding and abetting theory for that charge, as there was no evidence that Rodriguez “partieipate[d]” in that particular transaction “as in something that he wishe[d] to *752 bring about.” United States v. Ramos-Rascon, 8 F.3d 704, 711 (9th Cir.1993).