                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        Nos. 10-10295 and 10-10299

              Plaintiff - Appellant/             D.C. No. 1:09-cr-00271-OWW
              Cross-Appellee,

  v.                                             MEMORANDUM *

HERIBERTO SICAIROS-QUINTERO,

              Defendant - Appellee/
              Cross-Appellant.



                    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

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