NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50368, 18-50408

Plaintiff-Appellee / D.C. No. Cross-Appellant, 2:17-cr-00122-SJO-6

v.

MEMORANDUM*

PEDRO GRANADOS SALDANA,

Defendant-Appellant / Cross-Appellee.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted August 12, 2020 Pasadena, California

Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,** District Judge.

Pedro Granados Saldana appeals his conviction for conspiracy to distribute

at least fifty grams of methamphetamine and his convictions for distribution of at

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. least five and fifty grams of the same, aiding and abetting. The Government

cross-appeals Saldana’s 110-month sentence imposed by the district court. We

have jurisdiction under 18 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part

and vacate and remand in part.

1. The district court did not err by denying Saldana’s motion for

judgment of acquittal based on insufficient evidence for his conviction of

conspiracy to distribute methamphetamine, a decision we review de novo. See

United States v. Mincoff, 574 F.3d 1186, 1191-92 (9th Cir. 2009). Evidence “is

sufficient to support a conviction if, viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 1192 (internal

citation omitted).

Here, it is uncontested that this case involves an established conspiracy to

distribute methamphetamine. “Once a conspiracy is established, the Government

can prove a defendant’s knowing participation with evidence of the defendant’s

connection with the conspiracy.” United States v. Esquivel-Ortega, 484 F.3d 1221,

1228 (9th Cir. 2007) (internal citations omitted). Even a “slight connection” will

suffice. Id. While “mere presence” around those involved with the conspiracy is

insufficient, here the evidence demonstrates that Saldana intentionally participated

in the conspiracy. United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th

2 Cir. 2001). Indeed, Saldana was present for at least two out of the ten controlled

drug sales carried out by the Government’s confidential informant (“CI”) and on

both occasions Saldana directed the CI to another member of the conspiracy who

then executed the deals. Further, the cooperating witness (“CW”) testified that

Saldana was a street seller for Giovanny Ochoa, who ran the drug sales from 538

West 82nd Street (“538”) and 601 West 82nd Street (“601”). The CW also

testified that Saldana ran the early morning shift and frequently gathered drugs

from Ochoa and the CW to deliver to the dealers covering later shifts. A rational

trier of fact could therefore plausibly find beyond a reasonable doubt that Saldana

had at least a “slight connection” to the conspiracy. Esquivel-Ortega, 484 F.3d at

1228; Herrera-Gonzalez, 263 F.3d at 1095.

2. Because we conclude there is sufficient evidence for a rational trier of

fact to find beyond a reasonable doubt that Saldana aided and abetted the

distribution of methamphetamine, “we will not disturb the jury’s finding of guilt”

on this charge. See United States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir. 2002).

To support a conviction for aiding and abetting, “it is enough to show that the

defendant associated with the criminal venture, participated in it, and sought, by

his actions, to make it a success.” United States v. Boykin, 785 F.3d 1352, 1359

(9th Cir. 2015) (cleaned up). While “mere casual association with conspiring

people” is not enough, here the Government presented sufficient evidence

3 demonstrating that Saldana was an active participant in the methamphetamine

distribution enterprise and sought by his actions to make it successful. United

States v. Corona-Verbera, 509 F.3d 1105, 1119 (9th Cir. 2007) (citation omitted).

First, on July 23, 2015, Saldana was present for the negotiations between

“Sanchez,” another street dealer for Ochoa, and the CI. The CI and Saldana

discussed the CI’s alleged drug business and how much methamphetamine the CI

was hoping to purchase, and Saldana directed the CI to the 601 location to

complete the sale, where the CI successfully obtained the narcotics. Second, on

September 30, 2015, Saldana was present when the CI arrived at the 538 location

where the CI requested two ounces of methamphetamine from Saldana. Not

having the CI’s requested amount on him, Saldana directed the CI to Avelino

Villalba, another member of the conspiracy, who then connected the CI to Ochoa,

who finally effectuated the transaction. Considering the evidence in the light most

favorable to the Government, a reasonable factfinder could find that Saldana was

not only present for the drug transactions but acted with specific intent to make

them successful. Id.

3. Finally, we “review a jury’s . . . special findings for substantial

evidence,” and there is sufficient evidence for any rational trier of fact to make the

jury’s special quantity findings here for both Saldana’s conspiracy to distribute

methamphetamine charge and his two substantive distribution charges. United

4 States v. Navarrete-Aguilar, 813 F.3d 785, 793 (9th Cir. 2015) (cleaned up).

Because we have concluded there is sufficient evidence for Saldana’s conviction

for aiding and abetting both the July 23, 2015 and the September 30, 2015 sales,

which involved 27.49 grams and 115.19 grams of methamphetamine respectively,

we affirm the jury’s special quantity findings that the July and September

transactions involved at least five grams and fifty grams, respectively.

As for the jury’s finding that Saldana was responsible for at least fifty grams

of methamphetamine for his conspiracy conviction, the Government provided

evidence that Saldana was a reliable street seller for the conspiracy, often

completing the sale of his daily allocation of two to three grams of

methamphetamine every day of the conspiracy, which lasted for at least 40 days.

Conservatively, that amounts to at least 80 grams by itself. On top of this, Saldana

was regularly entrusted with up to six additional grams of methamphetamine per

day to transfer to the sellers working the later shifts. Moreover, the jury found that

Saldana facilitated these larger volume methamphetamine transactions on July 23

and September 30, 2015, and there is evidence of other, large transactions

facilitated by his co-conspirators within the scope of the conspiracy. Viewing the

evidence in the light most favorable to the prosecution, “any rational trier of fact”

could find that the conspiracy’s distribution of at least fifty grams of

methamphetamine was reasonably foreseeable to Saldana and that it was in the

5 scope of his agreement when he joined the conspiracy. See Navarrete-Aguilar,

813 F.3d at 793, 795 (cleaned up).

4. The district court erred by departing from the 120-month mandatory

minimum for methamphetamine trafficking under 21 U.S.C. § 841(b)(1)(A)(viii)

after crediting Saldana ten months for time already served pursuant to a state court

sentence for related conduct.

The Government specifically objected and properly preserved the downward

adjustment on appeal, and we therefore review the district court’s decision to

depart from the mandatory minimum de novo. United States v. Vilchez, 967 F.2d

1351, 1353 (9th Cir. 1992), as amended (July 9, 1992). Though the Government

initially agreed with the district court that the court had the authority to adjust

Saldana’s mandatory 120-month sentence to account for the state sentence, the

Government reversed course before the court pronounced Saldana’s sentence and

objected to the departure because the state sentence had been fully discharged. See

United States v. Grissom, 525 F.3d 691, 694 (9th Cir. 2008). The district court

acknowledged the Government’s objection before proceeding to sentence Saldana

to only 110 months.

We conclude that the district court erred by reducing Saldana’s sentence by

ten months pursuant to U.S.S.G. § 5G1.3(b), which provides that if “a term of

imprisonment resulted from another offense that is relevant conduct to that instant

6 offense of conviction,” the court shall “adjust the sentence for a period of

imprisonment already served on the undischarged term of imprisonment”

(emphasis added). See also United States v. Turnipseed, 159 F.3d 383, 386–87

(9th Cir. 1998). Because Saldana’s state court sentence was fully discharged at the

time of his federal sentencing, the district court had no discretion to adjust

Saldana’s sentence below the mandatory minimum of 120 months provided under

21 U.S.C. § 841(b)(1)(A)(viii). See United States v. Sykes, 658 F.3d 1140, 1146

(9th Cir. 2011). Saldana’s additional constitutional challenges also fail because he

has not demonstrated that there is no rational basis for Congress’s distinction

between discharged and undischarged state sentences. See United States v.

Padilla-Diaz, 862 F.3d 856, 862 (9th Cir. 2017).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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