United States of America v. JESSE MENDIVIL, Sr., AKA Robert Arriola, AKA Ruben Arriola, AKA Big Jesse, AKA Jesse…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESSE MENDIVIL, Sr., AKA Robert
Arriola, AKA Ruben Arriola, AKA Big
Jesse, AKA Jesse Mendival, AKA Jesse
Mendivil, AKA Jessie Mendivile, AKA
Jessie Mendiville,
Defendant-Appellant.
No. 17-50349
D.C. No.
5:14-cr-00107-VAP-3
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted February 8, 2019
Pasadena, California
Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.
Defendant Jesse Mendivil, Sr. appeals his conviction and sentence after a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
FILED
FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
jury found him guilty of one count of conspiracy to distribute or to possess with
intent to distribute methamphetamine and heroin. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.
The district court did not err in denying Mendivil’s motion to dismiss the
indictment for outrageous government conduct. “We review the district court’s
decision . . . de novo, viewing the evidence in the light most favorable to the
government.” United States v. Pedrin, 797 F.3d 792, 795 (9th Cir. 2015). First,
none of the misconduct occurred in Mendivil’s case, and therefore, it is not
“conduct that violates [Mendivil’s] due process in such a way that it is ‘so grossly
shocking and so outrageous as to violate the universal sense of justice.’” United
States v. Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011) (quoting United States v.
Restrepo, 930 F.2d 705, 712 (9th Cir. 1991)). Second, the jury was presented with
evidence about the agents’ misconduct, which allowed the jury to make its own
credibility determinations and decide whether any of the misconduct affected the
reliability of the evidence in Mendivil’s case.
The district court did not abuse its discretion in admitting evidence relating
to the Westside Verdugo gang and the Mexican Mafia. United States v. Skillman,
922 F.2d 1370, 1373 (9th Cir. 1990). The probative value of the evidence
pertaining to the Westside Verdugo gang, its drug-trafficking operations, and its
relationship with the Mexican Mafia was not substantially outweighed by the

-- 2 of 4 --

3
danger of wasting time or presenting unfairly prejudicial evidence under Federal
Rule of Evidence 403. This evidence helped the jury understand the organizational
structure and the operations of the drug conspiracy in which Mendivil was
involved.
“[V]iewing the evidence in the light most favorable to the prosecution,” the
evidence was “adequate to allow any rational trier of fact [to find]” that Mendivil
joined a single conspiracy to distribute or to possess with intent to distribute heroin
and more than 50 grams of methamphetamine “beyond a reasonable doubt.”
United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (internal
quotation marks omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Finally, the district court did not rely upon clearly erroneous facts to support
Mendivil’s sentence of 240 months imprisonment. United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008). The evidence supported the government’s claim
that Mendivil was higher up in the hierarchy of the gang. Nor was Mendivil’s
sentence substantively unreasonable. The district court granted him a substantial
downward departure from his Sentencing Guidelines range of 360 months to life.
United States v. Treadwell, 593 F.3d 990, 1015 (9th Cir. 2010) (“Although we do
not automatically presume reasonableness for a within-Guidelines sentence, ‘in the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within
the broad range of sentences that would be reasonable in the particular

-- 3 of 4 --

4
circumstances.’” (quoting Carty, 520 F.3d at 994)).
AFFIRMED.

-- 4 of 4 --