NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FERNANDO LOPEZ-ARMENTA,

Defendant - Appellant.

No. 23-618

D.C. No.

2:21-cr-00132-JCC-1

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, Senior District Judge, Presiding

Argued and Submitted June 5, 2024

Portland, Oregon

Before: RAWLINSON, FORREST, and SUNG, Circuit Judges.

Fernando Lopez-Armenta appeals his convictions for possession of a 

controlled substance with intent to distribute in violation of 21 U.S.C. § 841 (a)(1), 

(b)(1)(A), and for carrying a firearm during the commission of a drug trafficking 

crime in violation of 18 U.S.C. § 924 (c)(1)(A)(i). We have jurisdiction under 28 

U.S.C § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 14 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-618

1. The district court did not abuse its discretion by declining to instruct 

the jury on the lesser-included offense of simple possession. A defendant is entitled 

to a lesser-included offense instruction if, among other things, “the evidence would 

permit a jury rationally to find the defendant guilty of the lesser offense and acquit 

him of the greater.” United States v. Medina-Suarez, 30 F.4th 816, 819 (9th Cir. 

2022) (quoting United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007))

(cleaned up).

1

We review the district court’s “factual inquiry” as to whether “the record 

contains evidence that would support a conviction of the lesser offense” for abuse 

of discretion. Id. at 820 (quoting Arnt, 474 F.3d at 1163) (cleaned up). Where 

“evidence used to prove an element common to both the greater and lesser offenses 

necessarily prove[s] the distinct element of the greater offense[,] . . . . a jury could 

not rationally find the defendant guilty of the lesser offense without also finding 

him guilty of the greater offense.” Id. at 821–22. “[A] district court may not weigh 

1 Lopez-Armenta argued that he was entitled to a lesser-included offense 

instruction based on our holding that “a defendant is entitled to an instruction 

concerning his theory of the case if it is legally sound and evidence in the case 

makes it applicable, even if the evidence is weak, insufficient, inconsistent, or of 

doubtful credibility. A defendant needs to show only that there is evidence upon 

which the jury could rationally sustain the defense. . . .” United States v. Kayser, 

488 F.3d 1070, 1076 (9th Cir. 2007) (internal quotation marks and citations 

omitted). That rule is not applicable here, because it concerns actual defenses or 

theories that defendants present. Rather, the specific rule for lesser-included 

offenses governs. 
3 23-618

the evidence in determining whether to give a lesser included offense instruction.”

United States v. Hernandez, 476 F.3d 791, 800 (9th Cir. 2007).

The uncontested evidence at trial established that Lopez-Armenta contacted

a confidential informant concerning the informant’s need for fentanyl pills and

arranged to meet with the informant. Police arrested Lopez-Armenta at this 

meeting. Lopez-Armenta had a gun, ammunition, about $3,500 in cash, and 

confessed to possessing approximately 429.6 grams of fentanyl pills recovered 

from his car. Considering all the uncontested evidence, the district court did not 

abuse its discretion in concluding that no rational juror could find that LopezArmenta possessed the 429.6 grams of fentanyl for personal use. See id. at 798

(“[W]here there is a large quantity of a drug and other evidence tending to 

establish distribution[,] . . . . once a jury determines that a defendant possessed the 

drugs, it could not rationally conclude that there was no intent to distribute.”

(citations and internal quotation marks omitted)).

2. The district court did not abuse its discretion by allowing the 

informant to testify in partial disguise wearing a COVID-style mask. See United 

States v. de Jesus-Casteneda, 705 F.3d 1117, 1119 (9th Cir. 2013) (“The 

appropriate standard of review for the district court’s decision to allow the 

[confidential informant to testify in] disguise is abuse of discretion.”), amended on 

denial of reh’g en banc by 712 F.3d 1283 (9th Cir. 2013). “A criminal defendant’s 
4 23-618

right to cross-examination includes the right to face physically those who testify 

against him and to ensure that the witness gives his statement before the jury so the 

jury may observe the witness’s demeanor.” Id. This requirement may be dispensed 

with when “necessary to further an important public policy and only where the 

reliability of the testimony is otherwise assured.” Maryland v. Craig, 497 U.S. 836, 

850 (1990). 

Here, the mask disguise furthered the important public policy of ensuring the 

informant’s safety. See de Jesus-Casteneda, 705 F.3d at 1120 (holding that a 

confidential informant’s disguise “was necessary to further an important state 

interest, namely a witness’s safety . . . . given his continuing involvement in 

[cartel] drug investigations as an undercover agent.”). Although only part of the 

informant’s face was visible when wearing the mask, the remaining reliability 

factors were met. See id. at 1121 (“[T]he disguise in the form of a wig and 

mustache did not violate the Confrontation Clause” where “the reliability of the 

[informant’s] testimony was otherwise assured . . . .”). The informant was 

physically present at trial, testified under oath, was subject to cross-examination 

while Lopez-Armenta could see him, and the jury was able to hear his voice, see 

his eyes, and observe his body language. See id. (listing these as “key elements of 

one’s demeanor that shed light on credibility”). 

AFFIRMED.