United States of America v. Heriberto Sicairos-Quintero

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant/
Cross-Appellee,
v.
HERIBERTO SICAIROS-QUINTERO,
Defendant - Appellee/
Cross-Appellant.
Nos. 10-10295 and 10-10299
D.C. No. 1:09-cr-00271-OWW
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted July 17, 2012
San Francisco, California
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
Following a jury trial, Heriberto Sicairos-Quintero was convicted of
manufacturing and aiding and abetting the manufacture of marijuana, in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and of carrying a firearm during and in
FILED
AUG 02 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The
district court imposed a 120-month sentence for the drug offense, and a concurrent
60-month sentence for the firearm offense. The government appeals the sentence,
and Sicairos-Quintero cross-appeals his conviction. We have jurisdiction under 18
U.S.C. § 3742(b) and 28 U.S.C. § 1291. We affirm the conviction, vacate the
sentence, and remand for resentencing.
Sicairos-Quintero first contends that there was insufficient evidence that he
knew or could reasonably foresee that there were 1,000 or more marijuana plants
being manufactured. The parties stipulated that there were 7,143 marijuana plants
being manufactured, and Sicairos-Quintero testified at trial that he spent 25 days
living at the grow site, and that he would enter the marijuana garden to provide
cigarettes to the workers. The two arresting officers testified that it was
immediately obvious to them that there were thousands of plants at the site.
Viewing the evidence in a light most favorable to the prosecution, a rational trier of
fact could have found beyond a reasonable doubt that Sicairos-Quintero knew or
could reasonably foresee that there were 1,000 or more marijuana plants being
manufactured. See United States v. Shetler, 665 F.3d 1150, 1163 (9th Cir. 2011).
Sicairos-Quintero also contends that there was insufficient evidence that he
carried a firearm during and in relation to a drug trafficking crime. Officers

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arrested Sicairos-Quintero approximately 50 yards from an active marijuana
garden and discovered a loaded pistol in his waistband. Viewing the evidence in a
light most favorable to the prosecution, a rational trier of fact could have found
beyond a reasonable doubt that Sicairos-Quintero was protecting the grow site and
thus carried the firearm in relation to a drug trafficking offense. See Shetler, 665
F.3d at 1163; United States v. Arreola, 467 F.3d 1153, 1160 (9th Cir. 2006)
(carrying of a firearm relates to the underlying drug offense where it facilitates the
crime). We accordingly affirm Sicairos-Quintero’s conviction.
As Sicairos-Quintero concedes, in light of the Supreme Court’s recent
decision in Abbott v. United States, a district court is required to impose a
consecutive mandatory minimum sentence for a section 924(c) conviction. See
131 S. Ct. 18, 23 (2010) (“[A] defendant is subject to a mandatory, consecutive
sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of
receiving a higher mandatory minimum on a different count of conviction.”).
Accordingly, we vacate Sicairos-Quintero’s sentence and remand for resentencing,
because the district court ordered the sentence for Sicairos-Quintero’s section
924(c) conviction to run concurrently with the sentence for his drug offense.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED
for resentencing.

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