United States of America v. FRANCISCO ALFREDO MONTES- VARGAS, AKA Pastas, AKA Consejo Rodriguez-Palacios

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO ALFREDO MONTES-
VARGAS, AKA Pastas, AKA Consejo
Rodriguez-Palacios,
Defendant-Appellant.
No. 17-10470
D.C. No.
2:10-cr-00708-GMS-3
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted February 4, 2019**
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
Defendant-Appellant Francisco Alfredo Montes-Vargas (Defendant) appeals
his 204-month sentence for conspiracy to distribute and distribution of cocaine and
methamphetamine pursuant to 21 U.S.C. §§ 841 and 846. After a jury found
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
Defendant guilty on both counts, the district court initially sentenced him to 292
months of imprisonment based on an incorrect presentence report (PSR). See
United States v. Montes-Vargas, 679 F. App’x 588, 589 (9th Cir. 2017). Following
our remand for resentencing, id., the district court resentenced Defendant to 204
months of imprisonment based on a revised PSR. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
1. The district court did not err when it attributed the entire quantity of drugs in
the stash house to Defendant when calculating his base offense level, even though
Defendant personally delivered only a portion of those drugs. “[I]n determining
for purposes of sentencing the quantity of drugs for which a conspirator will be
held responsible, the district court is required to determine the quantity of drugs the
conspirator reasonably foresaw or which fell within the scope of his particular
agreement with the conspirators.” United States v. Kilby, 443 F.3d 1135, 1142 (9th
Cir. 2006) (quoting United States v. Banuelos, 322 F.3d 700, 702 (9th Cir. 2003));
see also U.S.S.G. § 2D1.1, cmt. 5 (“If the offense involved both a substantive drug
offense and an attempt or conspiracy . . . the total quantity involved shall be
aggregated to determine the scale of the offense.”). Based on the intercepted
telephone calls in which Defendant discussed the conspiracy, it was not plainly
erroneous for the district court to conclude that he reasonably could have foreseen
that the enterprise involved the total amount of stash house drugs, which, as the

-- 2 of 4 --

3
district court noted, was sufficient to reach the offense level used in the
resentencing. Furthermore, as to Count 4—the substantive drug offense—the jury
indicated on a special verdict form that the drugs attributable to Defendant
exceeded the threshold amounts alleged in the indictment, which further supports
the inference that Defendant was responsible for the entire quantity of drugs
contained in the stash house.
2. We also conclude that that the district court did not err when it adopted a
drug calculation in the PSR that combined the various types of drugs seized using
the drug equivalency table, rather than treating each drug separately. See U.S.S.G.
§ 2D1.1, cmt. 7 (“Where there are multiple transactions or multiple drug types, the
quantities of drugs are to be added.”).
3. We find that the district court did not abuse its discretion when it applied a
two-level enhancement for the importation of methamphetamine, as it was not
clearly erroneous for the court to conclude that the methamphetamine was
imported from Mexico and that Defendant knew of the importation. See United
States v. Job, 871 F.3d 852, 870–72 (9th Cir. 2017).
4. The district court did not err when it applied the same mandatory minimum
sentence to the conspiracy count as to the corresponding substantive offense. See
United States v. Dabdoub-Canez, 961 F.2d 836, 838 (9th Cir. 1992).
5. Lastly, although Defendant argues that a new trial is needed due to

-- 3 of 4 --

4
erroneous jury instructions, that issue is beyond the scope of our limited remand
and will not be considered. See Montes-Vargas, 679 F. App’x at 589 (remanding
for resentencing only).
AFFIRMED.

-- 4 of 4 --