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U.S. v. Lopez-Morales

United States Court of Appeals, Ninth Circuit.Page 32
Aug 29, 2008
312 F. App'x 31 (9th Cir. 2008)

Opinion

No. 07-30188.

Submitted August 26, 2008.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed August 29, 2008.

Russell E. Smoot, Esq., Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee.

Beth M. Bollinger, Esq., Attorney at Law, Spokane, WA, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding. D.C. No. CR-05-00126-10-RHW.

Before: T.G. NELSON, HAWKINS, and BYBEE, Circuit Judges.



MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Guillermo Lopez-Morales ("Lopez") appeals his convictions for conspiracy to distribute controlled substances, see 21 U.S.C. §§ 841, 846, and use of a communication facility in furtherance of a controlled-substance offense. See 21 U.S.C. § 843(b). We affirm the conviction.

Although the indictment conjunctively charged Lopez with conspiring to distribute cocaine and methamphetamine, the district court did not constructively amend or prejudicially vary the indictment by instructing the jury that Lopez could be found guilty if he conspired to distribute either cocaine or methamphetamine. See United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985); United States v. Toliver, 351 F.3d 423, 430 (9th Cir. 2003); United States v. Booth, 309 F.3d 566, 572 (9th Cir. 2002).

Similarly, the district court did not err by not including a specific reference to Washington in the jury instructions. Lopez contends that this omission allowed the jury to convict him based on a different conspiracy than that charged in the indictment. But even assuming the government proved multiple conspiracies, rather than the single conspiracy charged in the indictment, Lopez failed to demonstrate prejudice. See United States v. Morse, 785 F.2d 771, 774-75 (9th Cir. 1986).

We decline to reach Lopez' ineffective assistance claim because the record is not sufficiently developed for review of this issue. See United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).

We have considered Lopez' remaining contentions and find them without merit.

AFFIRMED.


Summaries of

U.S. v. Lopez-Morales

United States Court of Appeals, Ninth Circuit.Page 32
Aug 29, 2008
312 F. App'x 31 (9th Cir. 2008)
Case details for

U.S. v. Lopez-Morales

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Guillermo LOPEZ-MORALES…

Court:United States Court of Appeals, Ninth Circuit.Page 32

Date published: Aug 29, 2008

Citations

312 F. App'x 31 (9th Cir. 2008)