Cruz

Billy Cruz and Joey Mesa appeal from their convictions for conspiracy to distribute methamphetamine and possession with intent to distribute. 21 U.S.C. §§ 846 , 841(a). Cruz also appeals his conviction for attempting to possess methamphetamine with intent to distribute. The district court had jurisdiction under 18 U.S.C. § 3231 ; we have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, reverse in part and remand.

FACTUAL BACKGROUND

Mesa hired Peter Balajadia to carry 210.7 grams of methamphetamine from California' to Guam in a pouch sewn into his underwear. In exchange, Balajadia was to be paid $1,500 and two small packets of methamphetamine. Mesa instructed Balajadia to deliver the drugs to Jaime Tenorio in Guam. Balajadia flew from San Francisco to Honolulu on his way to Guam, accompanied by Robert Taitano. Unfortunately for the conspirators, an anonymous tipster had informed Honolulu police detectives that Balajadia would be carrying methamphetamine on the flight. The detectives questioned Balajadia, conducted a consensual search, and found the methamphetamine. After Balajadia and Taitano were arrested, Balajadia agreed to cooperate with the government.

Balajadia…

concurring in part and dissenting in part.

Joey Mesa, Jaime Tenorio, Peter Balajadia, and Robert Taitano conspired to distribute more than 200 grams of crystal methamphetamine. When Balajadia informed Mesa that he was unable to complete the delivery, Billy Cruz voluntarily agreed to participate in the drug conspiracy. Cruz flew from California to Honolulu, met Balajadia in his hotel room, and put on a pair of underwear with a pouch sewn into it that he believed contained methamphetamine worth up to $169,000. Had the authorities not intervened, Cruz would have flown to Guam and delivered the drugs. Under Supreme Court and Ninth Circuit precedent, Cruz should be held liable for all of his actions. Accordingly, I dissent from that portion of the majority opinion reversing Cruz’s conspiracy conviction.

The inchoate offense of conspiracy centers upon the agreement to commit an unlawful act, not the commission of the unlawful act itself.' “The accomplishment of the conspiracy’s goal is immaterial to the crime.” United States v. Rueter, 536 F.2d 296, 298 (9th Cir.1976). In United States v. Feola, 420 U.S. 671 , 95 S.Ct. 1255 , 43 L.Ed.2d 541 (1975), the Supreme Court recognized two…