United States v. Javier Meraz-Campos ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 28 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10384
Plaintiff-Appellee, D.C. No.
2:18-cr-01398-SPL-1
v.
JAVIER MERAZ-CAMPOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted November 20, 2020
Phoenix, Arizona
Before: BYBEE, MURGUIA, and BADE, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge MURGUIA
Defendant-Appellant Javier Meraz-Campos appeals his conviction and
sentence for importation of and possession with intent to distribute 500 grams or
more of methamphetamine. He alleges the district court erred by (1) denying his
motion to suppress evidence from the search of his vehicle, (2) granting the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
government’s motion to preclude his affirmative defense of duress, and (3) issuing
a procedurally erroneous and substantively unreasonable sentence. For the
following reasons, we affirm.1
1. We review a district court’s decision not to hold an evidentiary
hearing for abuse of discretion. United States v. Howell, 231 F.3d 615, 620 (9th
Cir. 2000). Contrary to Meraz-Campos’s contentions, the district court offered
him the opportunity to call witnesses and present evidence at the motions hearing.
Meraz-Campos did not call any witnesses. This is not error. See United States v.
Hernandez, 424 F.3d 1056, 1060 (9th Cir. 2005) (“We see no abuse of discretion
where the relief sought is offered but not accepted.”).
The district court did not err in denying Meraz-Campos’s motion to
suppress. We review a district court’s denial of a suppression motion de novo and
the underlying factual findings for clear error. United States v. Brobst, 558 F.3d
982, 991 (9th Cir. 2009). The exclusionary rule encompasses only evidence
obtained due to, or stemming from, an “unlawful search.” Wong Sun v. United
States, 371 U.S. 471, 484 (1963). The search conducted here was not unlawful.
United States v. Flores-Montano, 541 U.S. 149, 152–53 (2004) (“Searches made at
the border . . . are reasonable simply by virtue of the fact that they occur at the
1
We grant the government’s Motion to File Under Seal, Dkt. Nos. 53, 54.
2
border.” (citation and alteration omitted)). The use of a drug detector dog is
irrelevant because reasonable suspicion was not required for the border search. See
Hernandez, 424 F.3d at 1058–60 (affirming denial of suppression motion where
government argued reasonable suspicion was not required for border search);
United States v. Chaudhry, 424 F.3d 1051, 1052–54 (9th Cir. 2005) (same); United
States v. Cortez-Rocha, 394 F.3d 1115, 1118 n.1 (9th Cir. 2005) (as amended)
(same). The fact that Customs and Border Patrol (CBP) officers had reasonable
suspicion cannot serve to heighten the standard attached to the border search. See
United States v. Tsai, 282 F.3d 690, 694–95 (9th Cir. 2002) (holding that where a
warrant requirement “is dispensed with, as at the border . . . it does not offer extra
protection to that subset of those subject to search to whom heightened suspicion
attaches”).
Nor did the district court err in determining that the drug detector dog was
not the basis of the physical search. Officer Duarte’s testimony at trial, ER 90, is
sufficient to support the district court’s determination. United States v. Sanford,
673 F.2d 1070, 1072 (9th Cir. 1982) (“Testimony at trial may be used to sustain
the denial of a motion to suppress evidence, even if such testimony was not given
at the suppression hearing.” (citations omitted)).
3
2. We affirm the district court’s exclusion of Meraz-Campos’s
affirmative defense of duress. We review the district court’s decision de novo and
“may affirm the district court’s evidentiary ruling on any grounds supported by the
record.” United States v. Ibarra-Pino, 657 F.3d 1000, 1003, 1005 (9th Cir. 2011).
To present an affirmative defense of duress to the jury, Meraz-Campos was
required to establish a prima facie showing of duress by providing sufficient
evidence to establish: “(1) an immediate threat of death or serious bodily injury,
(2) a well-grounded fear that the threat will be carried out, and (3) lack of a
reasonable opportunity to escape the threatened harm.” Id. at 1004 (quoting United
States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008)).
Meraz-Campos failed to establish that he lacked a reasonable opportunity to
escape the threatened harm. On the day of his arrest, Meraz-Campos had a
reasonable opportunity to escape by informing the CBP officer about the
methamphetamine at primary inspection. This was a reasonable opportunity to
escape. See Ibarra-Pino, 657 F.3d at 1005 (“The opportunity to surrender to the
authorities on reaching a point of safety presents an opportunity to escape the
threatened harm.”); see also United States v. Moreno, 102 F.3d 994, 997–98 (9th
Cir. 1996). While Meraz-Campos raised the specter of harm to his family, the
record evidence indicates that his family lives in California, not Mexico. Thus,
4
Meraz-Campos failed to establish that he lacked a reasonable opportunity to
escape, and exclusion of his duress defense was not error.
3. We review sentencing decisions for abuse of discretion, first
considering “whether the district court committed significant procedural error,”
and then “consider[ing] the substantive reasonableness of the sentence.” United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). Meraz-Campos “failed to raise [the] alleged
procedural errors before the district court,” and therefore we “review for plain
error.” United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2013). He
“must show that: (1) there was error; (2) the error was plain; and (3) the error
affected [his] substantial rights.” Id.Meraz-Campos has failed to show that the district court’s errors affected his
substantial rights because he has not demonstrated a “reasonable probability that he
would have received a different sentence” in the absence of the error. Id. at 1102.
The district court stated at sentencing that it did not find the duress defense
credible and focused on numerous other factors to support the sentence, including
deterrence, protection of the public, the “overwhelming” evidence presented at
trial, and the “staggering amount” of methamphetamine involved. Meraz-Campos
has therefore failed to show reversible procedural error in his sentencing.
5
Meraz-Campos has also failed to demonstrate that his sentence was
substantively unreasonable considering “the totality of the circumstances.” Carty,
520 F.3d at 993 (citation omitted). We give substantial deference to the district
court’s sentence selection. See Gall, 552 U.S. at 51. The district court here
imposed “a sentence within the range recommended by the Guidelines,” and
therefore its decision “is fully consistent with the Commission’s judgment in
general.” Rita v. United States, 551 U.S. 338, 350 (2007). While we do not attach
a presumption of reasonableness to sentences within the applicable guidelines,
Carty, 520 F.3d at 994, the sentence here is reasonable. The district court applied
multiple downward adjustments, based on mitigating factors, to reach the
applicable guidelines range. Then, on the basis of the severity of the offense, the
large amount of almost pure methamphetamine, and the potential widespread harm,
the district court issued the maximum sentence under the applicable guidelines.
Meraz-Campos’s disagreement with his sentence does not make it unreasonable.
AFFIRMED.
6
FILED
DEC 28 2020
United States v. Meraz-Campos, No. 19-10384
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MURGUIA, Circuit Judge, concurring in part and dissenting in part:
I agree that the district court did not abuse its discretion in denying Meraz-
Campos’s suppression motion without a full evidentiary hearing, but I would
reverse the district court’s judgment because the court improperly excluded Meraz-
Campos’s duress defense. Accepting Meraz-Campos’s proffer supporting his
duress defense as “true in its entirety,” United States v. Chi Tong Kuok, 671 F.3d
931, 947 (9th Cir. 2012), I conclude that Meraz-Campos has provided sufficient
evidence to make a prima facie showing of duress. Although the government
offered to introduce evidence contradicting Meraz-Campos’s contentions that he
and his family were under an immediate threat from which he could not reasonably
escape, the credibility of Meraz-Campos’s testimony and the credibility of the
evidence he proffered in support of his defense should have been a question for the
jury. See United States v. Contento-Pachon, 723 F.2d 691, 695 & n.2 (9th Cir.
1984) (“We acknowledge that the record in this case will support a finding of
guilty. The problem is that there has been evidence tendered which, if found
credible by the jury, would justify a determination that [the defendant] acted under
duress. A defendant has the right to have a jury resolve the disputed factual
issues.”). Even though there may have been other evidence that strongly supported
Meraz-Campos’s conviction, he had a right to present his duress defense to the jury
once he proffered sufficient evidence to make a prima facie showing for the three
elements of this defense. The jury, not the court, should be tasked with
determining his credibility in light of any contradictory evidence proffered by the
government. Accordingly, I would reverse the judgment of the district court and
remand for a jury to consider Meraz-Campos’s duress defense.