                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 17 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10099

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00468-JAM-1

  v.

JOSE PENA,                                       MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                           Submitted January 12, 2017**
                             San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,*** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Erickson, District Judge for the U.S. District
Court for the District of North Dakota, sitting by designation.
      Jose Pena appeals from the judgment following his jury conviction and

sentence on one count of conspiracy to manufacture, distribute, or possess with

intent to distribute at least 1,000 marijuana plants in violation of 21 U.S.C. §§ 846

and 841(a)(1), and one count of manufacturing at least 1,000 marijuana plants in

violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      Pena first asserts that the district court erred by sustaining six of the

government’s hearsay objections during Pena’s testimony. Pena argues that, to

support his entrapment defense, he should have been permitted to testify to the

content of conversations between him and a confidential informant. Pena, however,

never made an offer of proof as to what this excluded testimony would have been.

“In the absence of an offer of proof of what the testimony would have been . . .

reversal will lie only where there is plain error.” United States v. Kupau, 781 F.2d

740, 745 (9th Cir. 1986). Pena has not shown that the exclusion of his objected-to

testimony affected his substantial rights or seriously affected the “fairness,

integrity, or public reputation of judicial proceedings.” United States v. Conti, 804

F.3d 977, 981 (9th Cir. 2015) (quoting United States v. Olano, 507 U.S. 725, 736

(1993)). Accordingly, the district court did not commit plain error by sustaining the

government’s objections.


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      Next, Pena contends that there was insufficient evidence to support the

jury’s finding that the charged marijuana conspiracy involved at least 1,000 plants,

which triggered a ten-year mandatory minimum sentence. The jury’s finding must

be upheld if “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

We review de novo a district court’s denial of a motion for acquittal based on

sufficiency of the evidence. United States v. Wanland, 830 F.3d 947, 952 (9th Cir.

2016).

      Here, there was ample evidence to support the jury’s finding. The

government agents who conducted the raid on the grow site, who also had

extensive experience investigating marijuana-related crimes, counted 1,019 plants

at the site. The touchstone is “readily observable evidence of root formation,” not

the existence of leaves, as Pena urges. See United States v. Robinson, 35 F.3d 442,

446 (9th Cir. 1994) (quotation marks omitted). The agents testified to their

involvement in the plant count, how they did it, what qualified as a plant, and

specifically testified to the number that had “viable root balls.” Pena’s counsel

cross-examined the agents on this point. Accordingly, the record contained




                                           3
sufficient evidence for the jury to find that the conduct involved at least 1,000

plants.

      Pena’s third argument is that the district court erred by failing to instruct the

jury on the definition of a “plant.” As Pena did not object to the jury instructions at

the time they were given, the failure to give a specific jury instruction is reviewed

for plain error. Conti, 804 F.3d at 981. Pena has failed to show that any error in the

jury instructions affected his substantial rights or seriously affected the “fairness,

integrity, or public reputation of judicial proceedings.” Id. (quoting Olano, 507

U.S. at 736). Thus, the district court’s jury instructions were not plainly erroneous.

      Pena’s final argument is that the district court erred by applying a four-level

aggravating role enhancement to Pena’s sentencing calculation. Under United

States Sentencing Guidelines § 3B1.1(a), four levels are added to an offender’s

offense level “[i]f the defendant was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise extensive.” We “review

for clear error a district court’s determination that a defendant was an ‘organizer or

leader’ for purposes of enhancement under U.S.S.G. § 3B1.1.” United States v.

Berry, 258 F.3d 971, 977 (9th Cir. 2001).

      Pena asserts that there were not five participants in the criminal activity.

While Pena was convicted, and three co-defendants pleaded guilty, the last co-


                                            4
defendant, Leonardo Contreras, was acquitted. A preponderance standard,

however, rather than a reasonable doubt standard, applies to the district court’s

finding that Contreras participated in the criminal activity. A person “may still be a

participant in criminal activity even though not criminally convicted.” United

States v. Dota, 33 F.3d 1179, 1189 (9th Cir. 1994). The district judge, who was

present for all trial proceedings regarding Contreras, found by a preponderance of

the evidence that he qualified as a participant despite his acquittal. In fact, there

was testimony from the undercover agents that Contreras provided supplies to the

grow site and participated in the criminal strategy. Accordingly, the findings that

there were five participants and that Pena was the organizer or leader are not

clearly erroneous.

      AFFIRMED.




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