United States v. Mario Villegas , 692 F. App'x 463 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30238
Plaintiff-Appellee, D.C. No. 1:14-cr-00038-SPW-9
v.
MEMORANDUM*
MARIO ALBERT VILLEGAS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted June 9, 2017**
Seattle, Washington
Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.
Mario Villegas appeals his jury conviction and sentence for conspiracy to
distribute methamphetamine and to possess methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 846, and possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err when it denied Villegas’s motion to suppress
the wiretap and digital evidence. United States v. Reed, 575 F.3d 900, 908 (9th
Cir. 2009). The government had no duty to establish necessity as to each possible
interceptee, and Villegas does not dispute that the government sufficiently
established necessity for the wiretaps with regard to its investigation of the drug
trafficking conspiracy as a whole. Id. at 911–12.
The jury instructions on venue correctly stated the law. United States v.
Gonzalez, 683 F.3d 1221, 1224–26 (9th Cir. 2012) (standard for venue on
conspiracy charge); United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010)
(explaining that jury instructions must correctly state the law); United States v.
Mendoza, 108 F.3d 1155, 1156 (9th Cir. 1997) (standard for venue on possession
charge); see also United States v. Valdez-Santos, 457 F.3d 1044, 1046 (9th Cir.
2006) (same). The jury instructions as a whole were not misleading. Hofus, 598
F.3d at 1174. The court properly instructed the jury that the government had to
prove the elements for the conspiracy and possession charges beyond a reasonable
doubt. It was not misleading for the court to also instruct the jury on what the
government had to prove by a preponderance of the evidence in order to establish
venue.
Villegas’s sentence was substantively reasonable. United States v. Dibe, 776
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F.3d 665, 669 (9th Cir. 2015). Villegas does not dispute that 360 months was the
low end of the advisory guideline range. The district court properly reviewed the
relevant 18 U.S.C. § 3553(a) factors and explained why a downward variance was
inappropriate, given the seriousness of the offense and Villegas’s extensive
criminal history. See United States v. Carty, 520 F.3d 984, 991–93 (9th Cir. 2008)
(en banc). The district court also explained why Villegas’s sentence was not
disproportionate to the sentences of his co-conspirators, since the disparity was
attributable to Villegas’s elevated criminal history, and those of Villegas’s co-
conspirators who were not entitled to special considerations also received
guideline-range sentences.
AFFIRMED.
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