United States of America, Plaintiff-appellee, v. Jaime Navarro-leon, Defendant-appellant.united States of America, Plaintiff-appellee, v. Santana Navarro-rivera, Defendant-appellant, 5 F.3d 542 (9th Cir. 1993)

Nor did the court violate Navarro-Leon's Sixth Amendment right to a jury trial for his contempt conviction: He received only a six-month concurrent sentence, see United States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983), and the enhancement was not an additional sentence for contempt, but a legitimate exercise of discretion in sentencing for the underlying offense. See 18 U.S.C. § 3661; U.S.S.G. Sec. 1B1.4. Since a defendant's sentence can be enhanced based on conduct for which he was neither indicted nor convicted, see United States v. Wong, slip op. 8623, 8635 (9th Cir. Aug. 10, 1993), and even for conduct for which he never could have been convicted, see id., it follows a fortiori that his sentence can be enhanced based on the contempt conviction.

His challenge to the Jewell instruction also fails since the jury could properly have found he was aware of a high probability of illegal activity and purposefully avoided investigating. See, e.g., SER 32, 43-44, 48; see United States v. Bobadilla-Lopez, 954 F.2d 519, 523 (9th Cir. 1992).

This defendant fares no better. The evidence against him was sufficient for " [a] rational trier of fact [to] have found the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The district court did not abuse its discretion in admitting expert testimony on the use of pagers by drug dealers--evidence we've often found relevant, see, e.g., United States v. Crespo De Llano, 838 F.2d 1006, 1018 (9th Cir. 1987)--or on the distinctive packaging of the cocaine. Collectively, such evidence tended to establish the dominion and control necessary to support his conviction under 21 U.S.C. § 841(a) (1).

Neither did the court err by giving an aiding and abetting instruction since evidence suggested that Navarro-Rivera associated with the criminal venture and participated in it. See Arias-Villanueva, slip op. at 7595. Finally, even if the admission of the unauthenticated telephone service agreement was an abuse of discretion, we conclude the evidence against defendant was substantial enough to ensure any error was harmless. Id. at 7593.

AFFIRMED.