United States v. Jesus Martinez Delgado , 640 F. App'x 620 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
JAN 15 2016
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50617
Plaintiff - Appellee, D.C. No. 2:09-cr-00445-DSF-59
v.
MEMORANDUM*
JESUS MARTINEZ DELGADO, AKA
Chuy, AKA Jesus Martinez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted January 5, 2016
Pasadena, California
Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges.
Jesus Martinez Delgado (Delgado) appeals from his convictions and
sentence for conspiracy to distribute cocaine base and methamphetamine,
possession with intent to distribute cocaine base, and simple possession of
methamphetamine. 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 9th Cir. R. 36-3.
As the facts and procedural history are familiar to the parties, we do not recite them
here except as necessary to explain our disposition.
1. The district court did not err when it denied Delgado’s motion to suppress
based on an asserted Miranda violation without holding an evidentiary hearing.
“Whether an evidentiary hearing is appropriate rests in the reasoned discretion of
the district court.” United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (per
curiam). “An evidentiary hearing on a motion to suppress ordinarily is required if
the moving papers are sufficiently definite, specific, detailed, and nonconjectural to
enable the court to conclude that contested issues of fact . . . are in issue.” Id.; see
also United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000).
Delgado’s motion was not sufficiently definite, specific, or detailed to create
a contested issue of fact. He generally asserted that when an officer read him his
rights in Spanish, he did not “completely understand” his rights because the
“agent’s Spanish was not very good.” In response, the government proffered an
affidavit of the agent who explained that his native language was Spanish, and he
read Delgado his Miranda rights from a pre-printed form. Delgado “did not
indicate . . . any confusion or uncertainty,” and told the officer “in Spanish that he
understood his rights and agreed to speak.” The record does not reflect any
communication difficulties through the rest of the interview.
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Delgado did not reply to the government’s opposition or rebut any of the
officer’s statements. The district court expressly asked Delgado’s counsel whether
he would like to be heard on the motion to suppress, and his counsel declined,
choosing instead to submit on the papers. In these circumstances, it cannot be said
that the district court abused its discretion in concluding that Delgado’s self-
serving and generalized statements failed to create a contested issue of fact
requiring an evidentiary hearing. See Walczak, 783 F.2d at 857.
2. The district court did not abuse its discretion by denying Delgado’s motions
to substitute counsel. The district court here gave Delgado a “full and fair
opportunity to explain why he felt substitution was necessary.” United States v.
Prime, 431 F.3d 1147, 1155 (9th Cir. 2005). The district court listened to his
counsel’s explanations in response, explained to Delgado why his counsel’s actions
had been reasonable, and concluded that Delgado and his attorney had not
developed an irreconcilable conflict or serious breakdown in communication that
would “result in an inadequate defense.” United States v. Musa, 220 F.3d 1096,
1102 (9th Cir. 2000).
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3. The district court that issued the wiretap for Delgado’s co-conspirator’s
phone1 did not abuse its discretion in concluding that the government had made “a
full and complete statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to be unlikely to succeed
if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). “[W]e have adopted a
‘common sense approach’ in which the reviewing court uses a standard of
reasonableness to evaluate the government’s good faith effort to use alternative
investigative means . . . .” United States v. Blackmon, 273 F.3d 1204, 1207 (9th
Cir. 2001). The government’s affidavit “devote[d] 76 pages to why other
investigatory procedures would not be effective,” and explained “in case-specific
detail why the use of . . . alternative investigatory procedures would be of
extremely limited utility, unlikely to succeed, and/or pose undue risk to human
safety.” This level of detail satisfies the statutory requirements under our
precedent, and the district court did not abuse its discretion in finding the wiretap
necessary to identify the role of all participants in the conspiracy under
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At the district court, the government argued that Delgado had not
adequately alleged that he “was a party to” the intercepted communications, such
that he would have standing to challenge the wiretap. The district court found that
Delgado did have standing. We do not reach this issue, because the government
has not renewed that argument on appeal, and because it affirmatively acquiesced
to Delgado’s standing at oral argument. See United States v. Spilotro, 800 F.2d
959, 963 (9th Cir. 1986).
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investigation. See United States v. Garcia-Villalba, 585 F.3d 1223, 1228–31 (9th
Cir. 2009).
4. The district court did not err in treating Delgado’s 2005 state court
conviction as a prior drug conviction to enhance his sentence. State convictions
may be used to enhance a federal sentence even where the federal and state charges
“derive in part from the same activity.” United States v. Baker, 10 F.3d 1374, 1420
(9th Cir. 1993) (amended opinion), overruled on other grounds by United States v.
Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000).
5. Delgado’s rights under the Double Jeopardy Clause were not violated
because the underlying conduct in one of his state court convictions was also used
as an overt act in furtherance of the federal conspiracy, and also used to enhance
his sentence. A conviction of a substantive offense and a separate conviction for
conspiracy involving that substantive offense do not pose a double jeopardy
problem. United States v. Felix, 503 U.S. 378, 380–81 (1992). Likewise, it does
not violate double jeopardy when a related substantive offense is used to enhance a
sentence for a separate crime. Witte v. United States, 515 U.S. 389, 399–401
(1995).
6. The district court did not violate Delgado’s Sixth Amendment right to a jury
trial by making findings regarding his previous convictions for sentencing, rather
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than submitting those issues to the jury. Sentencing factors such as recidivism are
not elements of a crime that are constitutionally subject to a trial by jury.
Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).
7. Delgado’s sentence does not violate the Cruel and Unusual Punishment
Clause of the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957,
994–96 (1991).
AFFIRMED.
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