Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Francisco ERMINIO-CLAROS, aka Francisco Erminio Claros, akaPaco, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Goduardo AGUILERA-DUANY, Defendant-Appellant.

No. 88-5297.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted in 88-5297, and Submitted on briefs in88-5309,^*  June 8, 1990.Decided July 10, 1990.

MEMORANDUM^*

Before JAMES R. BROWNING and PREGERSON, Circuit Judges, and GEORGE,^*** District Judge.

Erminio-Claros appeals his conviction for conspiracy to possess and distribute heroin and aiding and abetting distribution of heroin on the ground there was not sufficient evidence to show knowing participation in the conspiracy or the distribution. Aguilera-Duany appeals from his sentence. We affirm Erminio-Claros' conviction and remand Aguilera-Duany's case for resentencing.

* Erminio-Claros argues the government cannot rely on Aguilera-Duany's incriminating testimony because the testimony has numerous inconsistencies, was impeached by other government witnesses, and constituted an attempt to shift liability from Aguilera-Duany to Erminio-Claros. We will not lightly disturb a jury's credibility determination, and are not persuaded to do so in this case.

The jury was entitled to believe Aguilera-Duany's testimony that Erminio-Claros told him he knew a "lady friend" who could supply drugs and that Erminio-Claros gave Aguilera-Duany a small sample of heroin. In addition, there was testimony Erminio-Claros introduced Aguilera-Duany to Alvarez, coordinated Alvarez's transportation each time she carried the drugs, was present at negotiations for the sale held in Kosodoy's shop, and was the person in whom Alvarez said she placed her trust.

Drawing the reasonable inferences from the evidence in favor of the government, United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cir. 1982), a rational trier of fact could find Erminio-Claros to have been a knowing participant in the heroin distribution conspiracy. Under Pinkerton v. United States, 328 U.S. 640 (1946), the jury could also properly find Erminio-Claros guilty of the aiding and abetting count after finding him guilty of the conspiracy offense. See United States v. Vasquez, 858 F.2d 1387, 1393 (9th Cir. 1988).

Erminio-Claros' conviction is AFFIRMED.

II

Aguilera-Duany argues and the government concedes remand is appropriate to resentence Aguilera-Duany in accordance with the United States Sentencing Guidelines. Accordingly, Aguilera-Duany's sentence is VACATED and REMANDED.