United States v. Rivera ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-30474
v.  D.C. No.
GILBERTO BAEZ RIVERA, CR-05-02075-EFS
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-30483
v.  D.C. No.
LEONEL MENDOZA, CR-05-02075-WAE
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-30486
v.  D.C. No.
RIGOBERTO BAEZ RIVERA, CR-05-02075-EFS
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-30493
Plaintiff-Appellee,
v.  D.C. No.
CR-05-02075-EFS
ALICE ESPINOZA,
OPINION
Defendant-Appellant.

6205
6206 UNITED STATES v. RIVERA
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
September 25, 2007—Seattle, Washington
Filed June 2, 2008
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge B. Fletcher
6210 UNITED STATES v. RIVERA
COUNSEL
Beth M. Bollinger, Spokane, Washington, for defendant-
appellant Gilberto Baez Rivera.
Nicholas W. Marchi, Carney & Marchi, Seattle, Washington,
for defendant-appellant Leonel Mendoza.
Philip E. Nino, Spokane, Washington, for defendant-appellant
Rigoberto Baez Rivera.
Dan B. Johnson, Spokane, Washington, for defendant-
appellant Alice Espinoza.
Jane Kirk, Assistant United States Attorney, Yakima, Wash-
ington, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendants Gilberto Baez Rivera (“Gilberto”), Rigoberto
Baez Rivera (“Rigoberto”), Leonel Mendoza (“Mendoza”)
and Alice Espinoza (“Espinoza”) appeal their convictions for
conspiracy to distribute a controlled substance in violation of
21 U.S.C. § 846. Espinoza also appeals her conviction for
intentional use of a communication facility in causing and
facilitating conspiracy to distribute a controlled substance in
violation of 21 U.S.C. § 843(b). Defendants argue that the
government failed to show necessity for a wiretap on two tele-
phones and failed to properly minimize the various wiretaps
it used in its investigation of the conspiracy.
Rigoberto also appeals his sentence of 168 months impris-
onment on the ground that the district court, in calculating the
applicable sentencing range under the United States Sentenc-
UNITED STATES v. RIVERA 6211
ing Guidelines, improperly applied a four-level enhancement
to his offense level for his role as an “organizer or leader”
pursuant to U.S.S.G. § 3B1.1. Rigoberto further argues that
his sentence is unreasonable.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2003, the Drug Enforcement Administration
(“DEA”) opened an investigation of what it called the Rivera
Drug Trafficking Organization (“Rivera organization”). Most
suspected members of the Rivera organization lived in Yak-
ima, Washington. Gilberto was believed to be the leader of
the organization, and his brother Rigoberto was believed to be
a key member. Mendoza and Espinoza, Gilberto’s girlfriend,
were also believed to be involved in the Rivera organization.
While the DEA applied for and obtained three separate
wiretap authorizations, the only wiretap application chal-
lenged on appeal is a March 14, 2005 application by Assistant
United States Attorney George Fruchterman (“AUSA
Fruchterman”). The application was for a wiretap on two
mobile telephones: “Target Telephone 1,” which the DEA
believed was being used by Jerardo Rivera, brother of Gil-
berto and Rigoberto and a suspected narcotics distributor for
the Rivera organization; and “Target Telephone 2,” which the
DEA believed was being used by Rigoberto. The application
was supported by an affidavit by DEA Special Agent John
Schrock, who was the lead agent in the Rivera investigation.
In the affidavit, Agent Schrock explained that a confiden-
tial source, referred to as CS5, had engaged in numerous
narcotics-related conversations with Jerardo over Target Tele-
phone 1 in the course of negotiating four separate controlled
purchases of cocaine. Agent Schrock also explained that,
based on pen register analysis and physical surveillance, he
6212 UNITED STATES v. RIVERA
believed that Jerardo had coordinated one of the controlled
purchases with Rigoberto, and that Rigoberto had used Target
Telephone 2 in the process.
The affidavit also stated that pen register analysis on both
telephones indicated that Jerardo and Rigoberto were in fre-
quent contact with various other suspected members of the
Rivera organization, including Gilberto, Mendoza, Sabino
Rivera, who was believed to facilitate the Rivera organiza-
tion’s money laundering, Tony Cuevas, a suspected narcotics
distributor for the Rivera organization, and Alice Sambrano,
who in 1996 had been stopped at the Mexico-United States
border in a car containing 86.5 pounds of marijuana. In addi-
tion, telephone toll records showed that Target Telephone 2
had been used to place out-of-state, calling card and interna-
tional calls, which indicated that it might have been used to
contact sources of supply and points of distribution for narcot-
ics.
In the affidavit, Agent Schrock explained why, in his opin-
ion, use of the wiretap was the only available investigative
technique reasonably likely to achieve the purposes of the
Rivera investigation. Those purposes were (1) obtaining
enough evidence “to prove beyond a reasonable doubt” that
the persons expected to be intercepted, as well as others yet
unknown, were committing various narcotics-related offenses;
and (2) obtaining “critical information” about: the full scope
of the Rivera organization’s operation, including the identities
and roles of “persons involved in transporting, unloading,
storing, and supervising the delivery” of narcotics; the identi-
ties of “narcotics suppliers” to the Rivera organization; and
the money laundering operation, specifically who controls the
“disposition of proceeds generated by narcotics trafficking”
and “where the proceeds ultimately go.”
The district court (Suko, J.) authorized the wiretap on
March 14, 2005.
UNITED STATES v. RIVERA 6213
Between March 15 and May 3, 2005, the DEA carried out
the various authorized wiretaps. Special Agent Jacob Gilliam
was the agent mainly in charge of the monitors who listened
to the intercepted calls. A memorandum containing instruc-
tions for minimizing the wiretap had been prepared by AUSA
Fruchterman.
Following the termination of the wiretaps, the government
in an indictment and superseding indictment charged twenty-
one persons, including Defendants, with conspiracy to distrib-
ute a controlled substance and other offenses related to drug
trafficking.
Several of the persons charged, including Gilberto and
Mendoza, filed motions to suppress wiretap evidence based
on failure to show that the wiretaps were necessary and failure
to properly minimize them. All other defendants joined in the
motions. The district court (Shea, J.) held hearings on the sup-
pression motions and denied them.
Gilberto, Rigoberto and Mendoza pleaded guilty to count
one of the superseding indictment—conspiracy to distribute a
controlled substance (methamphetamine) in violation of 21
U.S.C. § 846—but reserved the right to appeal the denial of
their suppression motions based on lack of necessity and fail-
ure to minimize the wiretaps. The district court sentenced Gil-
berto, Rigoberto, and Mendoza to prison terms of 192 months,
168 months, and 60 months, respectively.
Espinoza was tried by jury. The jury returned a verdict of
guilty as to counts one and twenty-one of the superseding
indictment—conspiracy to distribute a controlled substance
(methamphetamine) in violation of 21 U.S.C. § 846, and
intentional use of a communication facility in causing and
facilitating conspiracy to distribute controlled substances in
violation of 21 U.S.C. § 843(b). The district court sentenced
Espinoza to prison terms of 30 months for each count, to be
served concurrently.
6214 UNITED STATES v. RIVERA
II. DISCUSSION
A. Necessity of the Wiretap
Defendants argue that the government failed to demonstrate
that the wiretap on Target Telephones 1 and 2 was necessary.
We disagree.
1. Applicable Standards
[1] Wiretap authorizations are governed by the Omnibus
Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2522.
“To obtain a wiretap, the government must overcome the stat-
utory presumption against this intrusive investigative method
by proving necessity.” United States v. Gonzalez, Inc., 412
F.3d 1102, 1112 (9th Cir. 2005) (citing United States v.
Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001)). The neces-
sity requirement for wiretap orders derives from 18 U.S.C.
§ 2518(1)(c) and (3)(c).1 See Gonzalez, Inc., 412 F.3d at 1112.
[2] In reviewing a district court’s denial of a motion to sup-
press where that motion asserts lack of necessity for a wire-
tap, we review de novo whether an application for a wiretap
order is supported by a full and complete statement of the
facts in compliance with 18 U.S.C. § 2518(1)(c). United
States v. Staves, 383 F.3d 977, 980 (9th Cir. 2004) (citing
Blackmon, 273 F.3d at 1207). Next, we review for abuse of
discretion the issuing judge’s conclusion that the wiretap was
1
Section 2518(1)(c) provides in relevant part that each wiretap applica-
tion must include “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).
Section 2518(3)(c) provides in relevant part that a judge may approve
a wiretap if he or she “determines on the basis of the facts submitted by
the applicant that . . . normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed if tried or to be
too dangerous . . . .” 18 U.S.C. § 2518(3)(c).
UNITED STATES v. RIVERA 6215
necessary. United States v. Lynch, 437 F.3d 902, 912 (9th Cir.
2006) (en banc).
2. Whether the Affidavit Contains a Full and Complete
Statement of the Facts
[3] In reviewing whether an affidavit contains a full and
complete statement of facts in compliance with § 2518(1)(c),
we assess whether the affidavit attests that adequate investiga-
tive tactics were exhausted before the wiretap order was
sought or that such methods reasonably appeared unlikely to
succeed or too dangerous. Gonzalez, Inc., 412 F.3d at 1111.
“As a general rule, proof that law enforcement officials either
lied or made reckless misstatements in affidavits to secure a
warrant or order does not in and of itself invalidate that war-
rant or order, or compel suppression of evidence obtained
upon its execution. But false statements that are material in
causing the warrant to issue will invalidate it.” United States
v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985).
[4] Agent Schrock’s 45-page affidavit adequately describes
the DEA’s use of various investigative techniques throughout
its 19-month investigation of the Rivera organization,
explains why those techniques did not achieve the purposes of
the investigation, and explains why the DEA did not use other
investigative techniques because they were deemed unlikely
to achieve those purposes.
The affidavit explains that the DEA and local authorities in
Yakima used six “confidential sources” and four “sources of
information” to obtain information about the Rivera organiza-
tion. For example, one confidential source identified Rigo-
berto as the user of Target Telephone 2 and was instructed by
Gilberto to earn money for him by selling cocaine; a second
purchased a pound of marijuana from Tony Cuevas and iden-
tified him as a subordinate Yakima-based distributor for the
Rivera organization; a third attempted to infiltrate the Rivera
organization by renting an apartment from Sabino Rivera and
6216 UNITED STATES v. RIVERA
purchasing three pounds of methamphetamine from Margarita
Sanchez; and a fourth, CS5, had numerous narcotics-related
conversations with Jerardo Rivera over Target Telephone 1
and made four controlled cocaine purchases from Jerardo
between November 2004 and January 2005, which also
involved Mendoza and Rigoberto.
The affidavit also explains, however, that these confidential
sources and sources of information were unlikely to help the
DEA verify the identities of the other members of the Rivera
organization and understand the organization’s methods of
money laundering. For example, one of the confidential
sources, who had once been threatened with a gun by Gil-
berto, was considered to be in too much danger; several of the
confidential sources and sources of information were unwill-
ing or too scared to infiltrate the Rivera organization or even
continue cooperating with law enforcement; and one confi-
dential source and one source of information were convicted
of crimes and deported.
Defendants contend that the affidavit should have provided
more detail, such as why a confidential source was considered
to be in too much danger, why other confidential sources were
unwilling or too scared to infiltrate the Rivera organization,
and why the government chose to deport a confidential source
and a source of information. However, we have not required
such a level of detail in a wiretap application.
In Blackmon, we found inadequate an affidavit’s explana-
tion that four previously-used informants were insufficient to
meet the purpose of the investigation because informants
“typically only possess limited knowledge concerning the
scope of the criminal enterprise” and because subjects of an
investigation “know that it is [in] their best interest to reveal
as little as possible to others concerning how their business is
conducted.” 273 F.3d at 1210. We concluded that this general
explanation was insufficient to prove necessity because it
“would be true of most or all drug conspiracy investigations,
UNITED STATES v. RIVERA 6217
and the limitations on the usefulness of informants, no matter
how successful or potentially successful to the particular oper-
ation, would support the necessity of a wiretap.” Id.We reached the opposite conclusion in United States v.
Canales Gomez, where the affidavit explained that the contin-
ued use of confidential informants was unlikely to be success-
ful because the informants were in custody, were no longer in
contact with members of the target drug trafficking organiza-
tion, had been denied access to suppliers and customers, and
were unaware of relevant trafficking locations or the scope of
the full conspiracy. 358 F.3d 1221, 1225 (9th Cir. 2004). The
affidavit thus concluded that any temporary release of the
informants would have been fruitless because no long-term
buyer-seller relationship could have been developed, because
any attempt by the informants to re-contact the organization
would have been suspicious and dangerous, and because the
informants would have been unable to provide timely, com-
prehensive information regarding the current trafficking oper-
ations. Id. We found that explanation to be sufficient. Id.[5] Like the affidavit in Canales Gomez, and unlike that in
Blackmon, the affidavit here did more than recite the inherent
limitations of using confidential informants; it explained in
reasonable detail why each confidential source or source of
information was unable or unlikely to succeed in achieving
the goals of the Rivera investigation. That is sufficient. While
we do agree with Defendants that the affidavit failed to
explain why CS5—who had purchased increasing amounts of
cocaine from Jerardo and others only a few months before the
DEA applied for the wiretap—was believed incapable of infil-
trating the Rivera organization to the extent necessary to iden-
tify Jerardo’s source of supply and his associates (besides
Mendoza and Rigoberto) in importing, processing and selling
cocaine, we conclude that this failure, given the level of detail
in the affidavit as a whole, does not render the affidavit inade-
quate for purposes of § 2518(1)(c). See United States v. Fer-
nandez, 388 F.3d 1199, 1237 (9th Cir. 2004) (concluding that
6218 UNITED STATES v. RIVERA
wiretap affidavit satisfied the requirements of § 2518(1)(c)
despite the fact that it included some statements merely
describing the inherent limitations of traditional investigative
techniques); United States v. Torres, 908 F.2d 1417, 1423
(9th Cir. 1990) (“The presence of conclusory language in the
affidavit will not negate a finding of necessity if the affidavit,
as a whole, alleges sufficient facts demonstrating necessity.”);
cf. Blackmon, 273 F.3d at 1208 (suppressing wiretap evidence
in part because “the [wiretap] application contains only gener-
alized statements that would be true of any narcotics investi-
gation”) (emphasis added).
[6] The affidavit also includes sufficient case-specific detail
in its discussion of physical surveillance. The affidavit states
that the DEA conducted physical surveillance of target resi-
dences and businesses on numerous occasions in order to cor-
roborate information provided by confidential sources and
identify residences of suspects, interactions between suspects,
and possible methods of laundering narcotics proceeds. The
affidavit describes how, for example, physical surveillance
allowed the DEA to verify that Gilberto used a particular
mobile telephone number that was subscribed to by Espinoza
and to determine that Rigoberto was likely involved in at least
one of Jerardo’s cocaine sales to CS5. However, the affidavit
explains that despite the usefulness of physical surveillance,
it did not significantly broaden investigators’ understanding
of how the Rivera organization functioned, did not verify rela-
tionships between suspects, and did not provide sufficient evi-
dence to warrant the arrest or prosecution of the
organization’s members.
We disagree with Defendants that the affidavit is mislead-
ing in stating that physical surveillance did not verify relation-
ships between suspects or provide sufficient evidence to
prosecute the organization’s members. While it is true that the
affidavit describes the suspected roles of fifteen persons in the
Rivera organization and certain relationships among them, it
is apparent that in many cases the DEA required additional
UNITED STATES v. RIVERA 6219
evidence to verify those relationships. Moreover, while physi-
cal surveillance in combination with the use of confidential
sources may have provided the government with enough evi-
dence to arrest and prosecute a few members of the Rivera
organization for drug crimes, it is clear from the affidavit that
the government required additional evidence to accomplish its
purpose of uprooting the entire drug trafficking conspiracy.
We also disagree with Defendants that the affidavit relies
only on a description of the inherent limitations of physical
surveillance in explaining why that investigative technique
was unlikely to further help achieve the purposes of the inves-
tigation. The affidavit provides three case-specific reasons
why in the Rivera investigation physical surveillance was par-
ticularly unlikely to be more successful: (1) many members of
the Rivera organization had their telephone bills sent to an
unused family residence or to a girlfriend’s residence so as
not to disclose their current residential address to law enforce-
ment; (2) many members of the Rivera organization lived in
close-knit communities whose residents included illegal aliens
who often were suspicious of law enforcement and would tip
off other residents who they believed were targets of surveil-
lance; and (3) members of the Rivera organization were suspi-
cious of law enforcement surveillance and employed
countermeasures in attempts to defeat such surveillance.
Moreover, the affidavit describes two specific instances in
which Rigoberto and Mendoza employed such countermea-
sures. Thus, the affidavit does more than describe the inherent
limitations of physical surveillance. It also “specif[ies] why,
in the particular case at hand, these inherent limitations will
[cause ordinary investigative techniques to] be insufficient.”
Blackmon, 273 F.3d at 1210.
We further disagree with Defendants that the affidavit’s
discussion of the use of grand jury subpoenas either lacks suf-
ficient case-specific detail or contains a material omission. In
explaining why the DEA did not subpoena conspirators to tes-
tify before a grand jury during the Rivera investigation, the
6220 UNITED STATES v. RIVERA
affidavit does recite the inherent limitations of that investiga-
tive tool, including that the service of grand jury subpoenas
on conspirators will alert those conspirators, and probably
other conspirators as well, to the fact that an investigation is
ongoing, which in turn may compromise the investigation.
However, the affidavit also illustrates the anticipated effect of
those inherent limitations on the Rivera investigation: a confi-
dential source informed Agent Schrock that in 2003, shortly
after Miguel Rivera, father of Gilberto and Rigoberto, had
been served with a grand jury subpoena to testify about a dif-
ferent drug trafficking organization, Gilberto fled to Tijuana,
Mexico, because he feared that law enforcement might arrest
him for his role in narcotics trafficking. Thus, the affidavit
does more than recite the inherent limitations of using grand
jury subpoenas as an investigative tool; it also demonstrates
that those limitations were likely to prevent the DEA from
successfully using that investigative tool in the Rivera investi-
gation.
Moreover, while the affidavit omits the information that
Gilberto’s wife and children lived in Tijuana, we disagree
with Defendants that this omission is material. Defendants
contend that, if the issuing court had been provided that infor-
mation, it could have concluded that Gilberto traveled to
Tijuana not for fear of being arrested but instead to visit his
family. However, as the district court explained in ruling on
Defendants’ suppression motions, the fact that Gilberto’s fam-
ily lived in Tijuana did not “discount the fact that a confiden-
tial informant had specifically advised [Agent Schrock] that
Gilberto’s travel to Mexico was a direct result of the grand
jury subpoena.” Accordingly, the fact that Gilberto’s family
lived in Tijuana would likely not have affected the issuing
court’s determination that the wiretap was necessary, and the
omission of this fact from the affidavit was therefore not
material. Cf. Ippolito, 774 F.2d at 1485-86 (“[I]t is necessary
to evaluate the hypothetical effect of knowledge of the exis-
tence of a potentially useful informant on the original district
court’s determination that a wiretap was necessary. If it would
UNITED STATES v. RIVERA 6221
have no effect, then the misstatement would not be materi-
al.”).
[7] We further conclude that the affidavit provides suffi-
cient case-specific detail in explaining why the DEA was
unlikely to achieve the objectives of the Rivera investigation
by using, or continuing to use, undercover agents, trash runs,
interviews with members of the Rivera organization, and pen
registers and trap-and-trace devices. We do agree with Defen-
dants that the affidavit fails to explain in sufficient case-
specific detail why subpoenaing financial records held by
non-conspirators would not achieve the investigation’s goal of
understanding the organization’s money laundering operation
and why the execution of search warrants was unlikely to
yield a major quantity of narcotics or narcotics proceeds,
especially since two police searches of Gilberto’s residence
prior to the start of the investigation had yielded large
amounts of narcotics and cash. Nonetheless, considering the
affidavit’s detailed discussion of most of the other investiga-
tive techniques that the DEA used or considered using, we
find these failures not to be fatal to the affidavit as a whole.
See Fernandez, 388 F.3d at 1237; Torres, 908 F.2d at 1423.
[8] Finally, we find it immaterial that the affidavit omitted
a discussion of the use of global positioning tracking devices.
The record reveals that the DEA placed one such device on
Rigoberto’s vehicle but only after the wiretap application and
affidavit had already been submitted, and that Rigoberto soon
learned about the presence of the device and stopped driving
that vehicle. Thus, including those facts in the affidavit would
likely not have affected the issuing court’s necessity determi-
nation. See Ippolito, 774 F.2d at 1485-86.
[9] In sum, we conclude that the affidavit supporting the
wiretap application contains a “full and complete statement”
as required by 18 U.S.C. § 2518(1)(c).
6222 UNITED STATES v. RIVERA
3. Whether the Wiretap was Necessary
When reviewing necessity, we employ a “common sense
approach to evaluate the reasonableness of the government’s
good faith efforts to use traditional investigative tactics or its
decision to forgo such tactics based on the unlikelihood of
their success or the probable risk of danger involved with
their use.” Gonzalez, Inc., 412 F.3d at 1112 (citation and
internal quotation marks omitted).
[10] “Though ‘the wiretap should not ordinarily be the ini-
tial step in the investigation, . . . law enforcement officials
need not exhaust every conceivable alternative before obtain-
ing a wiretap.’ ” Canales Gomez, 358 F.3d at 1225-26 (quot-
ing United States v. McGuire, 307 F.3d 1192, 1196-97 (9th
Cir. 2002)). “The necessity for the wiretap is evaluated in
light of the government’s need not merely to collect some evi-
dence, but to ‘develop an effective case against those involved
in the conspiracy.’ ” United States v. Decoud, 456 F.3d 996,
1007 (9th Cir. 2006) (quoting United States v. Brone, 792
F.2d 1504, 1506 (9th Cir. 1986)). Thus, “we have ‘consis-
tently upheld findings of necessity where traditional investi-
gative techniques lead only to apprehension and prosecution
of the main conspirators, but not to apprehension and prosecu-
tion of . . . other satellite conspirators.’ ” McGuire, 307 F.3d
at 1198 (quoting Torres, 908 F.2d at 1422).
[11] It is clear that the DEA did not seek to use the wiretap
as the initial step in the Rivera investigation but instead used
numerous investigative techniques, and considered using sev-
eral others, over the course of a 19-month investigation before
applying for the wiretap. While the government could proba-
bly have relied on these techniques alone to successfully pros-
ecute a few individuals, including Jerardo Rivera and
Rigoberto, for drug crimes, the issuing court did not abuse its
discretion in concluding that the wiretap was necessary to
identify the full scope of the Rivera organization and “de-
UNITED STATES v. RIVERA 6223
velop an effective case” against its members. See Decoud,
456 F.3d at 1007.
This case is distinguishable from Gonzalez, Inc., where we
held that the government had failed to demonstrate necessity
for a wiretap on the telephone of the main office of a bus
company that the government suspected was being used in an
alien smuggling ring. In that case, the government had already
conducted a multi-year investigation into the alleged alien
smuggling activities but then sought to intercept incriminating
evidence linking the company’s founder and other persons in
the company’s main office to those alien-smuggling activities.
412 F.3d at 1106-07. The affidavit supporting the wiretap
application demonstrated that the government had conducted
only limited investigation into the activities at the company’s
main office before applying for a wiretap. Id. at 1108. Specifi-
cally, the affidavit demonstrated that the government had con-
ducted only five-days-worth of pen register and trap-and-trace
analysis of the office’s telephone and had conducted only lim-
ited physical surveillance of the office before abandoning its
surveillance efforts. Id. at 1112. We concluded that the affida-
vit indicated that “the government side-stepped its responsi-
bility to use promising traditional techniques when it began to
investigate the [company’s] office, and instead conducted
only the most cursory investigation before seeking a wiretap.”
Id. at 1113-14.
[12] Here, the DEA conducted far more than a cursory
investigation before applying for the wiretap. Over the course
of 19 months, the DEA conducted physical surveillance of
various targets of the investigation; conducted telephone
information analysis of Target Telephones 1 and 2 and other
telephone numbers associated with the Rivera organization;
used several confidential sources to try to infiltrate the Rivera
organization or purchase narcotics from it, including from
Jerardo Rivera and Rigoberto; consulted with several sources
of information to obtain information about the Rivera organi-
zation; used an undercover agent to gain information about
6224 UNITED STATES v. RIVERA
the Rivera organization’s money laundering activities; col-
lected trash at the residences of two members of the Rivera
organization and attempted to collect trash at the residence of
Rigoberto; and attempted to persuade Gilberto Mungia, a
member of the Rivera organization, to cooperate with the
Rivera investigation.2 Thus, the DEA’s pre-wiretap investiga-
tion was significantly more thorough than in Gonzalez, Inc.,
and we find it to be sufficient.3 See, e.g., United States v. Car-
neiro, 861 F.2d 1171, 1178 (9th Cir. 1988) (upholding wiretap
order where the DEA used informants, surveillance, pen reg-
isters and undercover agents before resorting to a wiretap).
Defendants contend that the DEA failed to demonstrate
necessity because it did not use traditional investigative tech-
niques as much as it could have. Specifically, Defendants
contend that the DEA could have conducted physical surveil-
lance in Tijuana, Mexico, where the DEA knew that Gilber-
to’s family resided; could have used CS5 for a longer period
of time in the hope that he would infiltrate the Rivera organi-
zation; and could have performed trash runs at residences of
2
Because the purpose of the wiretap was to obtain evidence against the
entire Rivera organization, we consider in our necessity analysis all the
DEA’s pre-wiretap investigative efforts directed at the Rivera organization
—not only those efforts directed at the users of the two telephones for
which the wiretap was sought. By contrast, in Gonzalez, Inc. we consid-
ered in our necessity analysis only the government’s investigative efforts
directed at the bus company’s main office—and not its earlier efforts
directed at the alien smuggling activities—because the purpose of the
wiretap was to obtain evidence specifically against the employees who
worked in that office. See Gonzalez, Inc., 412 F.3d at 1107.
3
As we explained in Gonzalez, Inc., “the government may establish
necessity for a wiretap by any of three, alternative methods. The govern-
ment may show that traditional investigative procedures (1) have been
tried and failed; (2) reasonably appear unlikely to succeed if tried; or (3)
are too dangerous to try.” 412 F.3d at 1112. Because we conclude that the
DEA showed that it had used an adequate array of traditional investigative
techniques, we need not reach the question of whether the DEA made a
sufficient showing that unused investigative procedures were unlikely to
succeed or were too dangerous to be tried.
UNITED STATES v. RIVERA 6225
other members of the Rivera organization, for example by
dressing up as trash collectors or using actual garbage collec-
tion employees to collect the trash. Defendants may well be
correct. But we have repeatedly held that “law enforcement
officials need not exhaust every conceivable alternative
before obtaining a wiretap.” Canales Gomez, 358 F.3d at
1225-26 (quoting McGuire, 307 F.3d at 1196-97); Brone, 792
F.2d at 1506.
Further supporting a finding of necessity here is the fact
that the DEA was investigating a large drug trafficking con-
spiracy and was seeking to prosecute not only the main con-
spirators but also the Rivera organization’s suppliers,
distributors and other known and unknown members. See
McGuire, 307 F.3d at 1198.
[13] While we agree with Defendants that the government
could have—and perhaps should have—further utilized tradi-
tional investigative techniques before applying for the wire-
tap, we may not reverse simply because we might have
decided not to grant the wiretap. We review the issuing
court’s decision to grant the wiretap for an abuse of discre-
tion, Lynch, 437 F.3d at 912, and we conclude that the issuing
court did not abuse its discretion here.
B. Minimization of the Wiretaps
Defendants argue that the government failed to meet the
statutory requirement that wiretapping “be conducted in such
a way as to minimize the interception of communications not
otherwise subject to interception . . . .” 18 U.S.C. § 2518(5).
Specifically, Defendants argue that (a) the DEA failed to put
in place adequate monitoring procedures and failed to prop-
erly train the wiretap monitors, and (b) the DEA arbitrarily
labeled calls as “pertinent” and made insufficient efforts to
minimize non-pertinent calls. We reject Defendants’ argu-
ments.
6226 UNITED STATES v. RIVERA
1. Applicable Standards
We review de novo a district court’s conclusion that the
government followed adequate minimization procedures. See
McGuire, 307 F.3d at 1200 n.7; Torres, 908 F.2d at 1423.
However, we review underlying factual issues for clear error.
Lynch, 437 F.3d at 912.
[14] “Minimization requires that the government adopt rea-
sonable measures to reduce to a practical minimum the inter-
ception of conversations unrelated to the criminal activity
under investigation while permitting the government to pur-
sue legitimate investigation.” McGuire, 307 F.3d at 1199. The
minimization techniques used “do not need to be optimal,
only reasonable . . . .” Id. at 1202. Whether the government
has conducted a wiretap in compliance with the statutory min-
imization requirement “will depend on the facts and circum-
stances of each case.” Scott v. United States, 436 U.S. 128,
140 (1978).
The government has the burden to show proper minimiza-
tion. Torres, 908 F.2d at 1423. However, because Defendants
do not challenge the admission into evidence of any inter-
cepted conversations on the ground that those conversations
should have been minimized, we need only examine whether
the government has shown a prima facie case of compliance
with the minimization requirement. See id.
2. Adequacy of Monitoring Procedures and Training
[15] It is apparent from the record that the DEA’s monitor-
ing procedures and its training of the monitors were adequate.
The record reveals that all agents working on the case and all
monitors were required to read Agent Schrock’s affidavit, the
court order for the wiretap, and the minimization memoran-
dum written by AUSA Fruchterman. Moreover, AUSA
Fruchterman personally instructed all agents and monitors
present on the first day of the wiretap and he made efforts to
UNITED STATES v. RIVERA 6227
speak by telephone with the monitors who began working
after the first day. In addition, a DEA agent sat down with
each new monitor, had him read the affidavit, the court order
and the minimization memorandum, asked him whether he
had any questions, and had him confirm by signature that he
had read the instructions. The DEA agent conducting these
training procedures was almost always Special Agent Gilliam,
who was in charge of monitoring when he was in the wire
room, and who, himself, had been instructed on the minimiza-
tion provisions by AUSA Fruchterman and Agent Schrock,
the lead agent in the case.
As the district court observed in denying Defendants’
minimization-related motions, the minimization memorandum
instructed monitors: to immediately terminate interception of
a call if no target subject or criminal associate was participat-
ing in the conversation; that a call could be intercepted for a
“reasonable time, usually not more than two minutes, to deter-
mine whether the conversation concerns criminal activities,”
and; what to do if it was unclear whether a conversation
related to criminal activity. Monitors were also instructed that
if they had questions they could ask the on-site agent or, if the
on-site agent was unavailable, contact AUSA Fruchterman,
another Assistant United States Attorney, or Agent Schrock.
While monitors were not tested on their understanding of
the documents they were required to read, all of them had
worked on numerous wiretaps in the past and, as most calls
were expected to be in Spanish, all monitors were Spanish
speakers. In addition, the DEA tried to have an agent fluent
in Spanish in the wire room at all times in order to review all
calls intercepted by the monitors. Thus, Spanish-speaking
agents would often listen to calls as they were coming in,
would check whether the monitors were minimizing the calls
at the appropriate times, and would compare call summaries
being prepared by the monitors with what was being said in
the call to which they were listening. While not all calls were
reviewed by agents as the calls were coming in, an agent
6228 UNITED STATES v. RIVERA
reviewed all call summaries later on. Further, more seasoned
monitors would many times listen in on calls being monitored
by less experienced monitors or would be present while such
calls were being recorded. In addition, DEA agents ensured
there was an overlap between shifts of monitors so that impor-
tant information about earlier intercepted calls could be trans-
ferred to the monitors starting the new shift.
While on occasion the only agent on duty may have left the
wire room to go to the bathroom or get something to drink,
the wire room was never without an agent for an extended
period of time. The mobile telephone numbers of all the
agents were written on a whiteboard in the wire room, the
agents kept their mobile telephones on 24 hours a day, and the
monitors were instructed to call if anything came up. The tele-
phone numbers of government attorneys, including that of
AUSA Fruchterman, were also written on the whiteboard.
We have found similar minimization procedures to be ade-
quate. In Torres, the DEA instructed monitors on the require-
ments and need for minimization and required them to read
and sign a copy of the minimization guidelines. 908 F.2d at
1423. In addition, a DEA agent and Assistant United States
Attorney made themselves available on a twenty-four hour
basis for consultation. Id. We held that the DEA had “adopted
reasonable procedures to assure compliance with the minimi-
zation requirement.” Id.[16] Defendants argue, however, that the DEA failed to
properly minimize the wiretap because it took insufficient
steps to ensure that monitors would minimize conversations
protected by the marital privilege. Specifically, they point out
that the DEA did not make efforts to determine whether any
of the wiretap targets were married and did not inform the
monitors that Gilberto’s wife lived in Mexico. We find Defen-
dants’ argument unpersuasive. The district court found, and
the record confirms, that monitors were instructed not to listen
to privileged calls, including calls between spouses. In addi-
UNITED STATES v. RIVERA 6229
tion, Special Agent Gilliam testified that the DEA was not
aware, despite having reviewed various county and city data-
bases, that any of the targets was married. While the DEA
perhaps should have specifically investigated the marital sta-
tus of the wiretap targets, Defendants cite no authority for the
proposition that failure to do so renders the DEA’s minimiza-
tion procedures, as a whole, inadequate. Moreover, as Defen-
dants point to no privileged conversations that they allege
were improperly minimized, there is no indication that the
monitors were insufficiently aware of how to minimize spou-
sal communications.4
[17] Accordingly, we conclude that the DEA’s monitoring
procedures and its training of the monitors did not fall short
of the requirements of 18 U.S.C. § 2518(5).
3. Whether the Calls Were Properly Labeled as Pertinent
and Minimized
[18] The record also refutes Defendants’ contention that the
government arbitrarily labeled calls as pertinent or failed to
4
While Defendants contend that the DEA failed to properly minimize
two intercepted conversations between Rigoberto and Edith Iniguez, they
do not contend that Rigoberto and Iniguez were married or had a common-
law marriage—only that they had children together. We need not decide
which marital privilege applies in this case, as neither the “marital com-
munications” privilege recognized by federal common law nor the Wash-
ington marital privilege statute covers conversations between individuals
who merely have children in common. See United States v. Griffin, 440
F.3d 1138, 1143-44 (9th Cir. 2006) (explaining that the federal common
law marital communications privilege “protects from disclosure private
communications between spouses” and “covers . . . only those communi-
cations made during a valid marriage”) (internal quotation marks and cita-
tion omitted); Wash. Rev. Code § 5.60.060(1) (2007) (“A husband shall
not be examined for or against his wife, without the consent of the wife,
nor a wife for or against her husband without the consent of the husband;
nor can either during marriage or afterward, be without the consent of the
other, examined as to any communication made by one to the other during
marriage.”).
6230 UNITED STATES v. RIVERA
make sufficient efforts to minimize non-pertinent calls. Spe-
cial Agent Gilliam testified that monitors were instructed to
label a call as pertinent if it concerned drug-related activity of
any kind and that he, when he later reviewed the calls, would
label a call pertinent if he thought the call was in any way
related to drug activity or would assist the DEA in the ongo-
ing investigation of the Rivera organization. Thus, the stan-
dard for whether a call should be labeled pertinent was clear
and not arbitrary.
While Defendants point to two calls between Rigoberto and
Edith Iniguez —one labeled pertinent and the other not—as
evidence that intercepted calls were nonetheless labeled arbi-
trarily in practice, Special Agent Gilliam explained that, in his
opinion, both calls were probably pertinent, but that one of
them may have contained insufficient detail about drug traf-
ficking activity for the monitor to label it as such. Nor does
the fact that some DEA agents labeled more calls pertinent
than did other agents demonstrate that the labeling was arbi-
trary. Despite the clear standard for determining whether a
call should be labeled pertinent, such a determination is inevi-
tably a judgment call. Special Agent Gilliam testified that
while some agents might have labeled calls slightly differ-
ently than others, he did not recall any disagreement between
agents about whether or not a call should be labeled pertinent.
Thus, we conclude that the labeling of calls as pertinent was
not arbitrary.
[19] Moreover, the fact that only 203 of 4,561 intercepted
calls were minimized does not render the DEA’s minimiza-
tion efforts inadequate. While the record does not indicate
how many of the intercepted calls the DEA labeled pertinent,
Defendants do not assert that the DEA intercepted, but failed
to minimize, any significant number of non-pertinent calls.5
5
We note that the district court found that a significant number of calls
did not contain conversations. For example, of 781 calls intercepted on
one telephone line, only 475 contained conversations. Those calls, while
non-pertinent, of course did not have to be minimized.
UNITED STATES v. RIVERA 6231
Thus, Defendants have not provided a basis for concluding
that the DEA’s minimization efforts were unreasonable. Cf.
United States v. Bennett, 219 F.3d 1117, 1123-24 (9th Cir.
2000) (holding that interception was properly minimized
where appellants contended that government failed to mini-
mize only 267 of 7,322 intercepted calls); Torres, 908 F.2d at
1423 (holding that minimization efforts were reasonable
where, of 1052 intercepted completed conversations, govern-
ment failed to minimize “only a handful of calls”).
Moreover, even assuming the DEA failed to minimize a
significant number of non-pertinent calls, at least three facts
in this case militate against finding the DEA’s minimization
efforts unreasonable. First, the Supreme Court has observed
that “[i]n a case such as this, involving a wide-ranging con-
spiracy with a large number of participants, even a seasoned
listener would have been hard pressed to determine with any
precision the relevancy of many of the calls before they were
completed.” Scott, 436 U.S. at 142. Thus, the DEA’s minimi-
zation efforts are not rendered unreasonable by the fact that
monitors may have declined to minimize calls because they
mistakenly believed them to be related to activities of the
Rivera organization. See id. Second, we have held that “[l]aw
enforcement is entitled to latitude to scrutinize messages by
conspirators, because such messages may contain double-
meanings and implied purposes, or even be conveyed in secret
code.” McGuire, 307 F.3d at 1201. Here, the district court
found that the members of the Rivera organization “utilized
code words” in their conversations. Therefore, the DEA’s
minimization efforts are also not rendered unreasonable by
the fact that monitors may have declined to minimize calls
because they mistakenly believed them to contain code words
referring to drug trafficking activities. Third, the district court
found that “the monitors were able to minimize a higher per-
centage of calls as the authorization period progressed
because the agents and monitors kept notes on a dry erase
board listing code words that were used, nicknames for indi-
viduals, relationships between individuals, and what individu-
6232 UNITED STATES v. RIVERA
als were associated with what telephone number.” Dist. Ct.
Order (3/9/06) at 9. We agree with the district court that this
fact weighs in favor of finding that the DEA’s minimization
efforts were reasonable.
[20] Accordingly, we conclude that the DEA’s labeling of
calls as pertinent and its efforts to minimize non-pertinent
calls were adequate for purposes of 18 U.S.C. § 2518(5).
C. Enhancement of Rigoberto’s Offense Level
Rigoberto argues that the district court erred by enhancing
his offense level by four levels under U.S.S.G. § 3B1.1(a)
because the record does not support a finding that he was an
“organizer or leader” of the Rivera organization. We disagree.
1. Applicable Standards
[21] Section 3B1.1 of the Sentencing Guidelines provides
for varying levels of enhancement depending upon a defen-
dant’s control over criminal activity and the number of people
involved:
(a) If the defendant was an organizer or leader of a
criminal activity that involved five or more partici-
pants or was otherwise extensive, increase by 4
levels.
(b) If the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal
activity involved five or more participants or was
otherwise extensive, increase by 3 levels.
(c) If the defendant was an organizer, leader, man-
ager, or supervisor in any criminal activity other than
described in (a) or (b), increase by 2 levels.
U.S.S.G. § 3B1.1. The application notes provide:
UNITED STATES v. RIVERA 6233
Factors the court should consider include the exer-
cise of decision making authority, the nature of par-
ticipation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over oth-
ers. There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal
association or conspiracy. This adjustment does not
apply to a defendant who merely suggests commit-
ting the offense.
U.S.S.G. § 3B1.1, cmt. 4.
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo. United States v. Garcia, 497 F.3d
964, 969 (9th Cir. 2007). The district court’s findings of fact
are reviewed for clear error. Id. Thus, we review for clear
error the district court’s finding that Rigoberto was an orga-
nizer or leader. United States v. Avila, 95 F.3d 887, 889 (9th
Cir. 1996). We have noted an intracircuit conflict regarding
whether we review application of the Guidelines to the facts
for an abuse of discretion or de novo. See Garcia, 497 F.3d
at 969; United States v. Staten, 466 F.3d 708, 713 n.3 (9th Cir.
2006). However, because our decision would be the same
under either standard of review, we need not resolve the con-
flict here.
“For a four-point upward adjustment to be appropriate, a
preponderance of the evidence must support a finding that the
defendant was an organizer or leader, ‘not merely that the
defendant was more culpable than others who participated in
the crime.’ ” Avila, 95 F.3d at 889 (quoting United States v.
Harper, 33 F.3d 1143, 1150 (9th Cir. 1994)).
[22] “We have upheld upward adjustments under
§ 3B1.1(a) in ‘cases involv[ing] defendants who, the evidence
6234 UNITED STATES v. RIVERA
showed, exercised some degree of control or organizational
authority over others.’ ” Garcia, 497 F.3d at 969-70 (quoting
Avila, 95 F.3d at 890) (alteration in Garcia). “Such control or
authority over others is required to impose the four-level
enhancement under 3B1.1(a), for it is ‘precisely what distin-
guishes a leader or an organizer [under § 3B1.1(a)] from a
manager or supervisor’ under § 3B1.1(b).” Garcia, 497 F.3d
at 970 (quoting Avila, 95 F.3d at 890 n.6) (alteration in Gar-
cia).
2. Analysis
[23] Here there was ample evidence that Rigoberto exer-
cised authority over others. While the Presentence Investiga-
tion Report (“PSR”) recommended a three-level “manager or
supervisor” enhancement under § 3B1.1(b), and while the
government did the same pursuant to its plea agreement with
Rigoberto, both the undisputed evidence in the PSR and the
testimony of Agent Schrock at the sentencing hearing estab-
lish that Rigoberto exercised authority over several individu-
als. For example:
- Rigoberto directed his girlfriend Maria
Mayorquin-Pulido and Alice Sambrano to travel
to California and Mexico and bring back narcot-
ics for him.
- Rigoberto directed Mayorquin-Pulido to deliver
narcotics in the Seattle area.
- Rigoberto directed Mayorquin-Pulido and Daniel
Cervantes to make several wire transfers to Los
Angeles so that narcotics could be sent from there
to Yakima.
- Sergio Gallegos admitted to serving as a go-
between for Rigoberto in several drug deals and
UNITED STATES v. RIVERA 6235
to functioning as a straw owner for the purchase
of Rigoberto’s vehicle.
- Edith Iniguez, another girlfriend of Rigoberto’s,
admitted to handing off packages that Rigoberto
had left at their residence to third parties and to
transferring the monies she collected to Rigo-
berto.
Moreover, our case law has considered relevant whether
the defendant exercised decision making authority in the pro-
curement and distribution of narcotics. Thus, in United States
v. Ponce, 51 F.3d 820 (9th Cir. 1995), we upheld an
organizer/leader enhancement because defendant McTague, in
addition to having managed two co-conspirators, had over-
seen the procurement and distribution of large amounts of
cocaine in the Los Angeles area and had “repeatedly exer-
cised decisionmaking authority and functioned in an organiza-
tional role in determining when, where, and to whom the
drugs would be sold.” Id. at 827. Likewise, in United States
v. Salcido-Corrales, 249 F.3d 1151 (9th Cir. 2001), we upheld
an organizer/leader enhancement because the defendant, in
addition to having exercised authority over others, had coordi-
nated the distribution of drugs received from out-of-state
sources, had initiated drug deals with an undercover officer,
had negotiated the terms of the drug deals, and had set their
locations and times. Id. at 1154-55. The application notes to
§ 3B1.1 confirm that the exercise of decision making author-
ity is a relevant factor in determining the defendant’s role in
a criminal enterprise. See U.S.S.G. § 3B1.1, cmt. 4 (“Factors
the court should consider include the exercise of decision
making authority . . . .”).
[24] Here, the record contains ample evidence that Rigo-
berto exercised decision making authority in the procurement
and distribution of narcotics. In addition to the examples
given above, the record reveals that:
6236 UNITED STATES v. RIVERA
- In August 2004, a confidential source met with
two people to discuss the purchase of metham-
phetamine, and the source was told that “Rigo”
was in charge of methamphetamine.
- Jerardo Rivera frequently arranged to meet with
Rigoberto to obtain drugs and remit monies.
There was also evidence that Jerardo stored nar-
cotics at his apartment on behalf of Rigoberto.
- In March 2005, Elisa Mercado asked Rigoberto
whether he and the Rivera organization wanted to
purchase a shipment of methamphetamine at a
particular price, and Rigoberto responded that he
was not interested in procuring the drugs at that
price.
- In March 2005, Rigoberto requested that Alice
Sambrano travel to California, take money with
her, and return to Yakima with a shipment of nar-
cotics. Rigoberto informed Sambrano that she
would be bringing back marijuana.
- In May 2005, Jacob Martinez-Villavicencio
informed Rigoberto that he had money he owed
and asked whether Rigoberto would give him
more drugs. Rigoberto indicated that he would
need the money for the drugs the same day and
directed Martinez-Villavicencio to drop the
money off at his house.
Thus, Rigoberto’s role in the Rivera organization is distin-
guishable from that of the defendant in Avila, where we
reversed an organizer/leader enhancement because the defen-
dant merely functioned as a “go-between” by negotiating, for
a fee, the sale of five kilograms of cocaine between the seller
and a buyer, and then later, accompanied by two co-
UNITED STATES v. RIVERA 6237
conspirators, delivering the cocaine to the buyer. 95 F.3d at
888, 890.
However, in arguing that he was not an organizer or leader,
Rigoberto points to the fact that his probation officer testified
at the sentencing hearing that he had “gained the impression
that Gilberto was more of a leader/organizer, more of a hands
off [sic], but kind of directed activities, where Rigoberto was
more of the day-to-day supervisor, more hands on.” Rigoberto
also points to the fact that he had substantially fewer assets in
his name than his brother Sabino Rivera and that Agent
Schrock’s affidavit in support of the wiretap application
merely described him as a “key member” of the Rivera orga-
nization.
We find Rigoberto’s argument unpersuasive. First, the pro-
bation officer conceded that it was a “difficult judgment call
to make” as to whether Rigoberto was an organizer/leader or
a manager/supervisor, and the district court, based on its thor-
ough familiarity with the case, concluded that “the evidence
is full and complete that [Rigoberto] was an equal player with
his brother [Gilberto].” Second, the fact that Rigoberto may
have been more responsible for day-to-day operations than
Gilberto does not mean that Rigoberto was not also a leader
or organizer. The application notes to § 3B1.1 explain that
“[t]here can, of course, be more than one person who qualifies
as a leader or organizer of a criminal association or conspira-
cy.” U.S.S.G. § 3B1.1, cmt. 4. Indeed, in Ponce, we upheld
the organizer/leader enhancement for defendant McTague
despite the fact that, while he had overseen the procurement
and distribution of cocaine in the Los Angeles area, his father-
in-law had been “the patriarch of the family smuggling busi-
ness and oversaw its general operation” and had managed
another part of the business as well. 51 F.3d at 825, 827.
The fact that Rigoberto had fewer assets in his name than
Sabino does not negate a finding that Rigoberto was an orga-
nizer or leader, especially considering that Sabino was
6238 UNITED STATES v. RIVERA
believed to be in charge of money laundering and Rigoberto
was believed to keep his assets (including a residence and a
vehicle) in the names of other persons. The fact that Rigo-
berto was described as a “key player” in Agent Schrock’s affi-
davit also does not negate his role as an organizer or leader.
[25] Accordingly, we conclude that the district court did
not clearly err in finding that Rigoberto was an organizer or
leader on the grounds that he was “an equal to [his] brother
[Gilberto] in many ways” and that his “role was extensive,
major and considerable in this involvement.” Based on the
district court’s finding supported by evidence in the record,
we conclude that the court correctly applied the four-level
enhancement under § 3B1.1(a) to Rigoberto’s offense level.
D. Reasonableness of Rigoberto’s Sentence
Rigoberto argues that his sentence of 168 months imprison-
ment is unreasonable. We disagree.
1. Applicable Standards
We review the district court’s imposition of a sentence for
an abuse of discretion. See United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc) (citation omitted).
In the district court’s determination of a sentence, “the
Guidelines are ‘the starting point and the initial benchmark
. . . .’ ” Id. at 991 (quoting Kimbrough v. United States, ___
U.S. ___, 128 S. Ct. 558, 574 (2007)). The district court
should then consider the factors set forth in 18 U.S.C.
§ 3553(a) to decide if they support the sentence suggested by
the parties. Carty, 520 F.3d at 991. Thus, the district court
“should consider the nature and circumstances of the offense
and the history and characteristics of the defendants; the need
for the sentence imposed; the kinds of sentences available; the
kinds of sentence and the sentencing range established in the
Guidelines; any pertinent policy statement issued by the Sen-
UNITED STATES v. RIVERA 6239
tencing Commission; the need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct; and the need to provide
restitution to any victims.” Id. (citing 18 U.S.C. § 3553(a)(1)-
(7); Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 596-
97 n.6 (2007)).
The district court may not presume that the guidelines
range is reasonable, but must make an individualized determi-
nation based on the facts. Carty, 520 F.3d at 991. Once the
sentence is selected, the district court must explain it suffi-
ciently to permit meaningful review. Id. at 992. However,
“[t]he district court need not tick off each of the § 3553(a)
factors to show that it has considered them.” Id.
“Appellate review is to determine whether the sentence is
reasonable; only a procedurally erroneous or substantively
unreasonable sentence will be set aside.” Id. at 993 (citation
omitted). While our circuit does not presume on appeal that
a sentence within the Guidelines range is reasonable, we have
recognized that a sentence within the Guidelines range “ ‘will
usually be reasonable . . . .’ ” Id. at 994 (quoting Rita v.
United States, 551 U.S. ___, 127 S. Ct. 2456, 2465 (2007)).
“We may not reverse just because we think a different sen-
tence is appropriate.” Carty, 520 F.3d at 993 (citation omit-
ted).
2. Analysis
The district court followed the proper procedure in deter-
mining Rigoberto’s sentence. It first correctly calculated the
applicable Guidelines range as 168 to 210 months, based on
a base offense level of 35 and a Category I criminal history.
The district court then provided the parties an opportunity to
argue for an appropriate sentence: Rigoberto requested a sen-
tence of 120 months, the statutory minimum, see 21 U.S.C.
§§ 841(b)(1)(A), 846, while the government recommended a
sentence of 151 months.
6240 UNITED STATES v. RIVERA
After noting that it could impose a sentence anywhere
between 120 months and the statutory maximum of life
imprisonment, see id., the district court considered the
§ 3553(a) factors.
The court addressed the following factors: the nature and
circumstances of the offense; Rigoberto’s history and charac-
teristics; the need for the sentence imposed; the kinds of sen-
tences available to the court; and the need to avoid
unwarranted sentence disparities. While the district court did
not address all of the § 3553(a) factors, it was not required to
do so. Carty, 520 F.3d at 992.
Based on its consideration of the § 3553(a) factors, the dis-
trict court concluded that a sentence below the Guidelines
range was not appropriate. Instead, the court imposed a sen-
tence at the bottom of the Guidelines range, 168 months.
Rigoberto argues that the sentence was unreasonable
because: his criminal history consists only of misdemeanors;
his involvement in the Rivera organization was shorter than
that of his brother, Gilberto; he has demonstrated remorse; by
pleading guilty, he has resigned to the hardship of being away
from his children for a long time; unlike his brothers, Rigo-
berto is a permanent resident of the United States, but he
accepts the deportation consequences of his plea; he com-
pleted the 11th grade and worked two jobs while in school;
and he is indigent.
[26] We find Rigoberto’s argument ultimately unpersua-
sive. The district court took into account Rigoberto’s criminal
history and acceptance of responsibility in calculating the
applicable Guidelines range. Moreover, in imposing a lesser
sentence on Rigoberto than it had on Gilberto, the district
court took into account Rigoberto’s shorter involvement in the
Rivera organization. The district court also expressly consid-
ered the fact that Rigoberto had performed some honest work
and had several children. Finally, the district court relied on
UNITED STATES v. RIVERA 6241
Rigoberto’s lack of funds in deciding not to impose a fine. We
conclude that the district court adequately took these facts
into account in imposing a sentence at the bottom of the sen-
tencing range. Nor are we convinced that the district court
should have imposed a lower sentence simply because Rigo-
berto will be deported following the completion of his sen-
tence. In short, “we see nothing unusual about [Rigoberto’s]
circumstances to compel a lower sentence than the low-end of
the Guidelines range.” Carty, 520 F.3d at 996.
[27] Accordingly, we conclude that the district court did
not abuse its discretion in imposing a sentence of 168 months
imprisonment.
III. CONCLUSION
We affirm Defendants’ convictions and Rigoberto’s sen-
tence, and affirm the judgments.
AFFIRMED.