United States v. Carlos Alvarez-Espinoza , 405 F. App'x 181 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 06 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-10430
Plaintiff - Appellee, D.C. No. 2:08-cr-00611-DGC-2
v.
MEMORANDUM*
CARLOS ALVAREZ-ESPINOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted November 5, 2010
Pasadena, California
Before: SCHROEDER, TALLMAN and M. SMITH, Circuit Judges.
Carlos Alvarez-Espinoza was convicted of multiple crimes arising out of the
hostage taking of undocumented immigrants. He appeals his conviction and
sentence to a total of 137 years in prison.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not err in denying Alvarez-Espinoza’s motion to
dismiss the indictment due to the government’s failure to retain a witness who
provided part of the basis for the search warrant. To support a dismissal of the
indictment, Alvarez-Espinoza must show that the government acted in bad faith
and caused prejudice to his case, and as conceded at oral argument, he cannot make
any such showing. See United States v. Gastelum-Almeida, 298 F.3d 1167, 1174
(9th Cir. 2002).
The district court imposed 18 U.S.C. § 924(c)(1)(A)(ii)’s mandatory
minimum seven-year sentence consecutive to the greater mandatory minimum
sentences required by the subsequent firearms convictions on other counts.
Alvarez-Espinoza contends this was error. The issue is the same as that recently
decided by the Supreme Court in Abbott v. United States, 131 S.Ct. 18 (2010). The
Court held that “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.” Id. at *5. There
was no error.
Alvarez-Espinoza also contends the district court erred when it stacked the
§ 924(c) sentences related to the brandishing of a firearm. There was no error
because under our circuit’s law, “when the government charges more than one
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§ 924(c) offense in a single indictment, each additional count is to be treated as a
‘second or subsequent conviction’ for purposes of 18 U.S.C. § 924(c)(1)(C)(i) and
therefore carries a mandatory minimum sentence of twenty-five years. Because
§ 924(c)(1)(D)(ii) requires that ‘no term of imprisonment imposed on a person
under this subsection shall run concurrently with any other term of imprisonment
imposed,’ each independent § 924(c) count in the indictment imposes a consecutive
sentence in addition to any other sentence imposed, either under § 924(c) or under
any other counts for which the defendant has been convicted.” United States v.
Beltran-Moreno, 556 F.3d 913, 915 (9th Cir. 2009) (emphasis in the original).
We have also recently held “that a sentencing court may not depart below
statutory minimums based upon the § 3553(a) factors.” United States v. Wipf, 620
F.3d 1168, 1171 (9th Cir. 2010). Alvarez-Espinoza’s argument that the court
should have done so in this case is therefore foreclosed.
Our case law also forecloses the argument that the sentence constitutes cruel
and unusual punishment. See United States v. Harris, 154 F.3d 1082, 1084 (9th
Cir. 1998) (“A sentence which is within the limits set by a valid statute may not be
overturned on appeal as cruel and unusual.”) (citations, brackets, and internal
quotation marks omitted).
AFFIRMED.
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