United States v. Jose Luis Sotelo-Rivera

concurring in part and dissenting in part:

I concur in part I of the majority opinion. Because I do not believe that a lesser-included offense instruction was necessary, I *1329 respectfully dissent from part II and from the judgment.

“Entitlement to a lesser-included offense instruction turns on completion of a two-step process. ‘First, the defendant must identify the lesser-included offense. Second, the defendant must demonstrate that a rational jury could find the defendant guilty of the lesser included offense but not the greater.’ ” United States v. Linn, 880 F.2d 209, 218 (9th Cir.1989), quoting United States v. Pace, 833 F.2d 1307, 1314 (9th Cir.1987), cert. denied, 486 U.S. 1011 , 108 S.Ct. 1742 , 100 L.Ed.2d 205 (1988). In Linn , we held that no lesser-included offense instruction was necessary because “[a] rational jury could not have convicted appellant of any lesser-included offense without relying on the precise evidence which establishes [his] guilt of the offenses charged.” 880 F.2d at 218 .

Sotelo contends that he was entitled to an instruction on the lesser-included offense of possession with intent to distribute less than 100 kilograms of marijuana. However,…

Jose Luis Sotelo-Rivera (“Sotelo”) appeals from his conviction for possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(l)(B)(vii) (1988). Sotelo claims the trial court erred *1326 in denying his motion for judgment of acquittal and in refusing to instruct the jury on the lesser-included offense of possession with intent to distribute less than 100 kilograms of marijuana. We reverse and remand.

FACTS AND PROCEEDINGS

At about 7:00 p.m. on October 3, 1988, U.S. Customs Special Agent Lee Morgan was traveling north on Leslie Canyon Road approximately six miles from Douglas, Arizona. At that time, Agent Morgan noticed a man wearing a white baseball cap, T-shirt, blue jeans, and white tennis shoes walking south towards Douglas. After continuing north one-half mile, Morgan discovered a green and white Blazer parked on the roadside facing south.

Morgan continued up the road, but returned to the Blazer ten minutes later. He noticed that the Blazer’s left rear tire was flat. Using a flashlight and the headlights of his car to illuminate the area, Morgan spotted the Blazer’s spare tire, torn and flat, in the front…

906 F.2d 1324 UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis SOTELO-RIVERA, Defendant-Appellant. No. 89-10082. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 7, 1990. Decided June 26, 1990. Jose H. Robles and Frank R. Zapata, Asst. Federal Public Defenders, Tucson, Ariz., for defendant-appellant. Joelyn D. Marlow, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before WALLACE, ALARCON and LEAVY, Circuit Judges. LEAVY, Circuit Judge: 1 Jose Luis Sotelo-Rivera ("Sotelo") appeals from his conviction for possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. Secs. 841 (a)(1) and 841(b)(1)(B)(vii) (1988). Sotelo claims the trial court erred in denying his motion for judgment of acquittal and in refusing to instruct the jury on the lesser-included offense of possession with intent to distribute less than 100 kilograms of marijuana. We reverse and remand. FACTS AND PROCEEDINGS 2 At about 7:00 p.m. on October 3, 1988, U.S. Customs Special Agent Lee Morgan was traveling north on Leslie Canyon Road approximately six miles from…