USA v. Herrera, No. 09-50275 (9th Cir. 2011)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 07 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50275 D.C. No. 2:02-cr-00531-RSWL-1 v. MEMORANDUM* CENOBIO HUMBERTO HERRERA, Sr., AKA Bert Herrera, AKA Cenobio Humberto Herrera, AKA Cenobio Humberto Lanz, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, Senior District Judge, Presiding Argued and Submitted January 10, 2011 Pasadena, California Before: O SCANNLAIN, W. FLETCHER, and CLIFTON, Circuit Judges. A jury convicted Cenobio Herrera of a number of crimes arising from an extensive conspiracy to purchase pseudoephedrine at wholesale, to sell it for use in manufacturing methamphetamine, and to launder the immense profits. The district * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. court sentenced him to 360 months in prison, consistent with the Federal Sentencing Guidelines. Herrera appealed his convictions on a number of grounds, each of which we rejected. We stated that: [W]e affirm the conviction [sic]. However, because the district court sentenced Herrera under the mandatory sentencing guidelines regime that prevailed prior to the Supreme Court s ruling in United States v. Booker, 543 U.S. 220 (2005), and since we cannot reliably determine whether the sentence imposed would have been materially different had the district court known that the guidelines were advisory, we order a limited remand under [United States v. Ameline, 409 F.3d 1073, 1084 85 (9th Cir. 2005)]. United States v. Herrera, 219 Fed. Appx. 686, 689 (9th Cir. 2007) ( Herrera I ). On remand, the district court determined that it would have given Herrera the same sentence even if it had known the Guidelines were advisory. In this timely appeal from that sentencing determination, Herrera seeks to reopen his challenge to the convictions which were affirmed in Herrera I. This he cannot do. I We have held that challenges to a defendant s conviction may be reviewed on appeal from an Ameline remand, where . . . the challenge was raised in an earlier appeal. United States v. Van Alstyne, 584 F.3d 803, 812 (9th Cir. 2009). Two of the challenges that Herrera now raises to his convictions were not raised on his initial appeal. Accordingly, he cannot raise them now. 2 In his first appeal, Herrera did challenge the sufficiency of the evidence to convict him of conspiring to aid and to abet the manufacture of over 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). But we rejected this claim, calling the evidence supporting Herrera s section 841(a)(1) conspiracy conviction overwhelming. Herrera, 219 Fed. Appx. at 688. The law of the case doctrine provides that one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case. United States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999) (internal quotation marks and citations omitted). However, a court may depart from the law of the case doctrine if there has been an intervening change in the law. Id. Herrera argues that there have been two relevant intervening changes in the law since his initial appeal was decided. First, he apparently believes that United States v. Santos, 553 U.S. 507 (2008), stands for a general anti-merger principle that goes something like this: where a defendant cannot violate a specific statute without also violating a more general statute (and where the more general statute provides for stricter punishment), the government is barred from prosecuting him under the more general statute. Applied here, Herrera claims that anyone who conspires to posses pseudoephedrine knowing, or having reasonable cause to believe that it will be used to manufacture methamphetamine, in violation of 21 3 U.S.C. § 841(c), will necessarily be guilty of conspiring to aid and abet the manufacture of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Because section 841(c) is more specific and more lenient than section 841(a)(1), Herrera contends that one guilty of the former should not be chargeable with the latter. But Santos does not stand for such a broad, free-floating anti-merger rule. For starters, Santos involved money laundering and illegal gambling; it had nothing to do with the drug statutes at the heart of Herrera s claim. The four justices in the Santos plurality only mentioned the merger problem in response to the government s argument from congressional intent. See id. at 515 (plurality opinion). Instead, the crux of the plurality s argument was that the term proceeds, as used in the money laundering statute, is ambiguous and should therefore be construed in Santos s favor. See id. at 514. Likewise, Justice Stevens concurrence considered the merger problem only because the statute was ambiguous. See id. at 526 27 (Stevens, J., concurring). II Second, Herrera claims that the standard of review applicable to his sufficiency of evidence claim has changed since his initial appeal. At the end of the government s case, Herrera moved for acquittal under Federal Rule of Criminal Procedure 29. However, he did not renew this motion at close of all the evidence. 4 On Herrera s first appeal, we reviewed his sufficiency claim for plain error, as required by United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200 01 (9th Cir. 2000). We have since recognized a futility exception to the Alvarez-Valenzuela rule. See United States v. Esquivel-Ortega, 484 F.3d 1221, 1224 25 (9th Cir. 2007). In Esquivel-Ortega, the defendant made a Rule 29 motion only a few moments before the close of evidence, but failed to renew the motion after two, largely cumulative, pieces of evidence were admitted. On appeal, we applied de novo review to his sufficiency claim because we found that it would have been futile for Esquivel to renew his motion following the offering of those two pieces of evidence. Id. at 1225. Herrera has not established that the Esquivel-Ortega exception applies here. At any rate, it is clear that any change in the standard of review would not have changed the result of Herrera s prior appeal. See Herrera, 219 Fed. Appx. at 688 (concluding that the evidence supporting Herrera s section 841(a)(1) conspiracy conviction was overwhelming ). As there has been no intervening change in the law that is relevant to Herrera s challenge to his section 841(a)(1) conspiracy conviction, it is precluded by the law of the case. 5 III Because Herrera does not challenge his sentence in this appeal, and cannot re-challenge his convictions, the decision of the district court is AFFIRMED. 6
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