United States v. Javier Perez ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50014
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-01172-
DDP-32
JAVIER PEREZ, AKA Ranger,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50241
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-01172-
DDP-25
VLADIMIR ALEXANDER IRAHETA,
AKA Jokes, AKA Slick, AKA the
Twin,
Defendant-Appellant.
2 UNITED STATES V. PEREZ
UNITED STATES OF AMERICA, Nos. 15-50243
Plaintiff-Appellee, 18-50187
v. D.C. No.
2:07-cr-01172-
LEONIDAS IRAHETA, AKA Druggy, DDP-26
AKA Drugs, AKA Shysty, AKA the
Twin,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50246
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-01172-
DDP-23
EDUARDO HERNANDEZ,
Defendant-Appellant.
UNITED STATES V. PEREZ 3
UNITED STATES OF AMERICA, No. 18-50181
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-01172-
DDP-23
EDUARDO HERNANDEZ, AKA Ed
Garcia, AKA Eduardo Garcia, AKA
Eduardo Hernadez, AKA Eduardo OPINION
Perez Hernandez, AKA Edward
Hernandez, AKA Lil Oso, AKA
Jorge Mateo Martinez, AKA Oso,
AKA Hernandez Oso, AKA Edward
Perez, AKA Terco,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted February 10, 2020
Pasadena, California
Filed June 11, 2020
Before: Marsha S. Berzon, Richard C. Tallman,
and Ryan D. Nelson, Circuit Judges.
Opinion by Judge Tallman
4 UNITED STATES V. PEREZ
SUMMARY *
Criminal Law
In appeals arising from the prosecution of four members
of the Columbia Lil Cycos clique of the 18th Street gang, the
panel affirmed the convictions of Eduardo Hernandez,
Leonidas Iraheta, and Vladimir Iraheta; affirmed in part and
reversed in part the convictions of Javier Perez; vacated
Perez’s sentence; and remanded for resentencing.
The panel held that a post-verdict filing made in camera
by a third party did not contain Brady material, and the
district court did not abuse its discretion in declining to allow
Leonidas’s and Hernandez’s attorneys to view it.
Leonidas and Hernandez claimed that the government
surreptitiously elicited expert testimony from law-
enforcement officers in violation of Fed. R. Evid. 701.
Observing that the district court diligently patrolled the line
between lay and expert testimony, the panel concluded that
in the few instances in which admission of the witnesses’
testimony was error, appellants suffered no prejudice.
Perez alleged that the district court improperly instructed
the jury on the extraterritorial application of the Violent
Crimes in Aid of Racketeering (VICAR) statute. The panel
explained that VICAR may reach a crime committed abroad
with sufficient nexus to the conduct of an enterprise’s affairs,
but if the predicate crimes cannot reach foreign conduct,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PEREZ 5
neither may VICAR. Because the predicate crimes with
which Perez was charged—California’s attempted murder
statute and its definitional components—do not proscribe
extraterritorial acts, the panel held that the district court erred
in instructing the jury that it is not necessary for the
government to prove that any part of the charged crime took
place within the United States. The panel wrote that this
error has a constitutional due process dimension: it relieved
the United States of the burden of proving the required
connection between American territorial jurisdiction and the
crimes in the challenged counts for which Perez stood trial
in the Central District of California. The panel therefore
evaluated whether the instructional error was harmless
beyond a reasonable doubt. The panel concluded that the
instructional error was harmless as to Count Sixteen
(VICAR conspiracy to murder) because (1) there was
evidence of the conspiracy’s origin in California; (2) the
jury’s special finding as to the date that the conspiracy began
was strong evidence it believed that the plan was hatched in
California; and, most importantly (3) as to that count, the
jury was correctly instructed that, in order to convict, it must
find that “an overt act was committed in this state by one or
more of the persons” involved. The panel held that the
instructional error was not harmless beyond a reasonable
doubt as to Count Eighteen (VICAR attempted murder),
where no contrary instruction cured the initial error.
The panel rejected sufficiency-of-the-evidence
challenges to Hernandez’s and the Iraheta brothers’
narcotics-conspiracy convictions and Perez’s conspiracy
convictions.
At sentencing, the panel held that the district court erred
in its application of a firearm enhancement to Hernandez, but
that this error was harmless. The panel rejected Hernandez
6 UNITED STATES V. PEREZ
and Leonidas’s objections to the district court’s drug-weight
calculation, application of a threat enhancement, explication
of 18 U.S.C. § 3553(a) factors, and use of judicial fact-
finding. The panel rejected Leonidas’s objection to a firearm
enhancement and his argument that the district court violated
Fed. R. Crim. P. 32. The panel rejected Hernandez’s
objection to the district court’s application of obstruction-of-
justice and managerial-role enhancements, and rejected
Hernandez’s and Leonidas’s arguments that their life
sentences are substantively unreasonable.
COUNSEL
Katherine Kimball Windsor (argued), Law office of
Katherine Kimball Windsor, Pasadena, California, for
Defendant-Appellant Eduardo Hernandez.
Lawrence Jay Litman (argued), Riverside, California, for
Defendant-Appellant Javier Perez.
Phillip A. Treviño, Los Angeles, California, for Defendant-
Appellant Vladimir Alexander Iraheta.
Timothy A. Scott and Nicolas O. Jimenez, Scott Trial
Lawyers APC, San Diego, California; for Defendant-
Appellant Leonidas Iraheta.
Julia L. Reese (argued) and Kevin M. Lally, Assistant United
States Attorneys; Brandon D. Fox, Chief, Criminal Division;
Nicola T. Hanna, United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
UNITED STATES V. PEREZ 7
OPINION
TALLMAN, Circuit Judge:
This is a criminal appeal from judgments of conviction
and sentence rendered in the Central District of California
arising from the prosecution of four members of a violent
street gang. We affirm the convictions and sentences of
Appellants Eduardo Hernandez, Leonidas Iraheta, and
Vladimir Iraheta. We affirm in part and reverse in part the
convictions of Appellant Javier Perez, vacate his sentence,
and remand for further proceedings.
I
The Columbia Lil Cycos (CLCS) clique of the 18th
Street gang controlled drug distribution, committed
extortion, and engaged in other illegal activities in the
Westlake neighborhood of Los Angeles from at least the
mid-1990s. CLCS and allied gangs operate under the
umbrella of the Mexican Mafia (the “Eme”), a prison-based
gang whose members, once behind bars, continue to oversee
the street gangs with which they were affiliated before their
incarceration.
When a street vendor defied CLCS’s extortion regime in
September of 2007, the gang sent a gunman to murder him
for his impunity. But one bullet missed the vendor and
tragically killed 21-day-old Luis Angel Garcia. Baby
Garcia’s death provoked an outcry for action from the
community and triggered a massive law enforcement
response. An initial federal indictment of eighteen CLCS
members and associates soon issued. The fourth
superseding indictment—the operative pleading here—
charged a total of twenty-four defendants with twenty-one
counts of racketeering, drug trafficking, money laundering,
8 UNITED STATES V. PEREZ
murder, assault, maiming, kidnapping, and various
conspiracies and attempts to do the same. By the time of
trial in early 2012, only these four Appellants remained to be
tried. Their confederates all pleaded guilty, and several—
including former CLCS leaders Sergio Pantoja, James
Villalobos, and Jose Delaguila—testified for the government
at Appellants’ trial.
The trial began on February 29, 2012. Appellants were
tried together on the theory that they were all members of an
illegal enterprise which carried out its nefarious activities
through a pattern of racketeering activity. The criminal
endeavors of Hernandez, Leonidas Iraheta (“Leonidas”), and
his twin brother Vladimir Iraheta (“Vladimir”), on the one
hand, and Perez on the other, were different: Hernandez and
the Iraheta twins were convicted for their roles in running
CLCS’s narcotics and extortion activities, while Perez’s
convictions arose out of his participation in a conspiracy to
kidnap and murder the gunman responsible for baby
Garcia’s death, Giovanni Macedo, to protect CLCS from
reprisals by the Eme for the infant’s murder.
The CLCS Enterprise
By the mid-1990s, CLCS had come to dominate the
Westlake/MacArthur Park neighborhood of Los Angeles,
between Beverley Avenue and Wilshire Boulevard (north to
south) and Alvarado Street and Burlington Avenue (west to
east). A constituent clique of the broader 18th Street gang,
CLCS fought the Mara Salvatrucha and, especially,
Rockwood Street gangs for primacy in Westlake. CLCS ran
a sophisticated drug-trafficking and extortion racket in its
territory. Drug wholesalers (“mayoristas”) and street-level
dealers (“traqueteros”) paid CLCS “rent” for the right to sell
drugs—mostly crack cocaine—on the street corners near
MacArthur Park. The dealers were strictly controlled: a
UNITED STATES V. PEREZ 9
traquetero who broke CLCS rules by selling outside his
allotted shift or skimming money off his collections was
liable to be savagely beaten. Other illegal businesses—
document forgers, gamblers—paid rent to CLCS, too, as did
many legitimate businesses in the neighborhood, under
threat of violence.
CLCS ruthlessly defended its territory from
encroachment. Armed bands of roving, gang-affiliated
youths (“little homies”) were expected to “put in work” by
marking CLCS territory with copious graffiti and
undertaking expeditions into rival neighborhoods to show
strength and disrespect. Violence abounded: if a rival gang
passed through CLCS streets or marked them with graffiti,
gang leaders expected associates to “[j]ump them,” or, as
one CLCS leader put it, to give them “[a]n ass beating that
. . . maybe he can’t get up off the floor and . . . sometimes if
you have a gun or you have a knife . . . you either just stab
them or you shoot them.”
Witnesses for the government put Hernandez and the
Iraheta twins at the center of both CLCS “gangbanging”—
meaning tagging, enforcing, and countering rivals—and
drug distribution. Hernandez led the collection of rents at a
lucrative drug-dealing hub, Westlake, from Third to Sixth
Streets, in addition to overseeing gangbanging. One witness
called him “the ultimate decisionmaker” on “what to do if
any problems occurred—meaning enemies coming into our
neighborhood or . . . homeboys going against homeboys or
whatever.” Leonidas and Vladimir served as Hernandez’s
“muscle,” assisting him with rent collection and leading
10 UNITED STATES V. PEREZ
“missions” into rival territory to “go do something to a rival
gang or to someone else; rob, tag on the walls, anything.” 1
CLCS was led by Francisco Martinez, who—despite
being incarcerated at the “Supermax” federal prison
complex in Florence, Colorado—maintained control over
CLCS and other Los Angeles 18th Street cliques from his
cell. Originally a member of CLCS himself, Martinez was
convicted of “[r]acketeering and a bunch of murders” in the
1990s and thereupon joined the Eme, which continues to
wield control over most of the Hispanic gangs of Southern
California. Martinez maintained his grip over CLCS with
the help of disgraced attorney Isaac Guillen, who testified
for the government in Appellants’ trial. Guillen used the
shield of the attorney–client privilege to circumvent
Florence’s security procedures, secreting and passing
information and orders to and from Martinez and CLCS’s
street leaders.
CLCS leaders, including Hernandez and both Irahetas,
would divvy up all the rent collected, section off Martinez’s
share—usually $5,000 to $17,000 a week—and deliver it to
Guillen. Guillen would launder the money by investing it in
a variety of businesses, funneling it to Martinez’s relatives
in Mexico, or putting it on Martinez’s inmate “books” at
Florence. This scheme enriched Martinez and enabled him
to continue to exercise control over this lucrative and violent
Los Angeles neighborhood.
1
Appellants dispute their roles in CLCS’s narcotics regime; where
relevant, we address their contentions below. We recount the facts in the
light most faithful to the jury’s verdict.
UNITED STATES V. PEREZ 11
The Garcia Murder and its Aftermath
Francisco Clemente sold black-market goods at a street
stand in CLCS territory. He got on the wrong side of CLCS
leaders by acting disrespectfully and refusing to pay rent. In
the summer of 2007, CLCS leader Pantoja tired of Clemente
and chased him out of the neighborhood, telling rent-
collector Juan Pablo Murillo to “take care of it” if Clemente
returned. When Clemente did return, Murillo enlisted
Macedo—then 18 years old—to show Clemente what
became of those who defied CLCS. Late at night on
September 15, 2007, Macedo and Murillo made their way to
Clemente’s stand on Sixth Street, and Macedo fired several
shots at him. Clemente was wounded but survived. 21-day-
old Garcia was not so lucky—he was struck and killed by a
stray bullet.
When he found out what had happened, Pantoja testified
that he told Murillo the latter had “fucked up” by killing
baby Garcia, violating the Eme’s strict code against
murdering infants and potentially triggering a gang-wide
“green light” whereby all CLCS members would become
targets for murder by other Eme-affiliated gangs. Pantoja
told Murillo that Macedo “had to be dealt with.” Murillo, a
member of an allied 18th Street clique—South Central—
enlisted the help of fellow South Central member Javier
Perez. At around 10 p.m. on September 19, Murillo and
Perez went to the home of another South Central member,
Flor Aquino, and demanded the use of her Chevrolet Tahoe,
purportedly to take Macedo to San Diego to hide out.
Aquino reluctantly agreed, but decided she would do the
driving. Murillo and another gang member went to
Macedo’s apartment, ordered him into the car, and drove
away before informing him they were taking him to Mexico.
They met up with Aquino and Perez at Aquino’s home, and
12 UNITED STATES V. PEREZ
together Murillo, Perez, Aquino, and Macedo departed for
Mexico.
Across the border in Tijuana the next day, Aquino stayed
with Macedo in the hotel while Murillo and Perez met up
with Pantoja, who had gone to Tijuana, he said, to ensure
Macedo was properly taken care of. Murillo assured Pantoja
he and Perez would “handle it,” and showed Pantoja a gun.
Perez and Murillo returned to the hotel and took Macedo out
drinking, then back to the hotel. Later that night, Perez,
Murillo, Macedo, and Aquino drove toward Mexicali
through the Sierra Juárez mountains on a cliffside highway,
with Macedo in the front passenger seat. Perez and
Murillo—seated in the back seat while Aquino drove—
grabbed a rope, threw it around Macedo’s neck, and began
to strangle him. Murillo told Macedo he had messed up;
Perez was less circumspect: he yelled, “Die motherfucker,
die!”
After strangling Macedo until he was bloodied, Perez
and Murillo checked to see if Macedo was still alive.
Believing him dead, Murillo and Perez dragged Macedo out
of the car and threw him over the cliffside. But Macedo was
alive: he woke up sliding down the cliff, grabbed a tree root
to check his fall, climbed back up to the road, managed to
hail a ride, and returned to the United States. He later
testified against Perez at trial.
After thirty-one trial days, the case was submitted to the
jury on May 3, 2012, and after several days of deliberation,
the jury returned a mixed verdict. Appellants were all
convicted of Count One (RICO conspiracy, 18 U.S.C.
§ 1962(d)); Hernandez and the Iraheta brothers were
convicted of Count Two (narcotics conspiracy, 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(iii); id. § 846); and Perez was
convicted of Counts Sixteen (conspiracy to murder under
UNITED STATES V. PEREZ 13
18 U.S.C. § 1959, the Violent Crimes in Aid of Racketeering
Statute, known as “VICAR”), Seventeen (VICAR
conspiracy to kidnap, id.), Eighteen (VICAR attempted
murder, id.), and Twenty (conspiracy to kidnap, 18 U.S.C.
§ 1201(a)(1), (c)). The jury hung on the VICAR murder
count that accused Hernandez and the Iraheta twins of the
2001 murder of Jose Barajas, Jr., and it acquitted Perez of
both kidnapping and VICAR kidnapping.
Sentencing
Prior to sentencing, the United States Probation Office
completed Presentence Reports (PSRs) for all Appellants.
All parties filed objections, and an amended PSR was also
filed for Perez, updating the recommended Sentencing
Guidelines calculations in response to some of the
government’s objections. The district court conducted
separate sentencing hearings for each Appellant. All four
Appellants were given life sentences; Vladimir is the only
Appellant who does not challenge the court’s sentencing
determination.
The court’s calculation of offense levels for Hernandez
and Leonidas relied upon the quantity of drugs it determined
were reasonably foreseeable under U.S.S.G. § 2D1.1 (2014)
(the version of the Guidelines relevant to all determinations
in this case and cited throughout this opinion). Though they
had separate hearings, there was much overlap in the
evidence against them, given their identical charges of
conviction and track record of working together. The court
used a “multiplier method” to arrive at the conclusion that
both Appellants were responsible for distributing at least
25.2 kilograms of crack cocaine, which mandated a base
offense level of 38. From there, the district court applied
various sentencing enhancements to one or both Appellants,
including enhancements for possession of firearms, use of
14 UNITED STATES V. PEREZ
threats, obstruction of justice, and managerial role in the
enterprise. Hernandez was calculated to have a final offense
level of 45, which is above the cutoff for a recommendation
of a life sentence regardless of criminal history. Leonidas’s
final offense level was 42 which, coupled with a criminal
history category of IV, resulted in a recommended
sentencing range of 360 months to life. The court considered
the 18 U.S.C. § 3553(a) factors, particularly focusing upon
the need for public safety and deterrence, in determining that
a life sentence was appropriate for each of them.
Like his co-Appellants, Perez was sentenced to life.
Given our disposition as to Perez, we do not reach his
sentencing challenges.
II
We first evaluate each of Appellants’ merits claims,
beginning with Hernandez and Leonidas’s joint attempt to
access a sealed filing post-verdict, proceeding to examine
the same Appellants’ challenge to certain police officer
testimony and Perez’s extraterritoriality claim, and finishing
with consideration of all four Appellants’ sufficiency-of-the-
evidence arguments.
A
Leonidas and Hernandez claim the district court erred in
blocking their counsel from viewing a post-verdict filing
made in camera by a third party. They speculate that the
filing contains “information that could have been used to
impeach . . . Guillen.” We review for abuse of discretion a
district court’s denial of a motion to unseal, see United States
UNITED STATES V. PEREZ 15
v. Sleugh, 896 F.3d 1007, 1012 (9th Cir. 2018), 2 reversing
only if the denial was “illogical, implausible, or without
support in inferences that may be drawn from the facts in the
record,” United States v. Hinkson, 585 F.3d 1247, 1263 (9th
Cir. 2009) (en banc).
We have examined the third-party filing at issue and
determined that the district court acted well within its sound
discretion in declining to allow Leonidas’s and Hernandez’s
attorneys to view it. Because of the salacious nature of the
content, we do not detail the facts here. But we have
carefully considered the material and the arguments of
defense counsel, and hold that the suppressed evidence does
not contain Brady material.
B
Leonidas and Hernandez next assign as error the district
court’s admission of large portions of testimony from four
law-enforcement witnesses. Appellants claim the
government surreptitiously elicited expert testimony from
the officers—who were testifying as lay witnesses, not
experts—in violation of Rule 701 of the Federal Rules of
Evidence. We review a district court’s evidentiary rulings
for abuse of discretion “and uphold them unless they are
illogical, implausible, or without support in inferences that
may be drawn from the facts in the record.” United States v.
Gadson, 763 F.3d 1189, 1199 (9th Cir. 2014) (internal
citation omitted). And the plain-error standard governs a
witness’s opinion not objected to at trial, see id. at 1209: we
2
The appellant in Sleugh sought the unsealing of the Rule 17(c)
applications of his co-defendant-turned-government-cooperator.
896 F.3d at 1011. While those circumstances differ from these—the
appellants here seek mere in camera review—Sleugh’s logic applies
here, as does its standard of review.
16 UNITED STATES V. PEREZ
decline to reverse based on an erroneous evidentiary ruling
unless the district court’s refusal to intervene sua sponte is
“(1) error; (2) that is plain; (3) that affects substantial rights;
and (4) . . . seriously affects the fairness, integrity, or public
reputation of judicial proceedings,” United States v.
Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011) (citing
Johnson v. United States, 520 U.S. 461, 466–67 (1997)).
Any error in admitting a lay witness’s opinion is harmless so
long as “in light of the evidence as a whole, there was a ‘fair
assurance that the jury was not substantially swayed by the
error.’” Gadson, 763 F.3d at 1208 (quoting United States v.
Freeman, 498 F.3d 893, 905 (9th Cir. 2007)).
1
The government called officers Joe Guadian, Paul
Keenan, Manuel Rodriguez, and Daniel Jenks as witnesses
during its case-in-chief. At the times relevant to their
testimony, Guadian was a federal Bureau of Prisons (BOP)
investigator, Keenan and Rodriguez were FBI Special
Agents, and Jenks was an LAPD detective; Keenan was the
lead case agent for the prosecution. The four officers opined
on a variety of subjects. Appellants claim that some of this
testimony, including their opinions on “code words, phone
calls, graffiti, and tattoos,” was not permissible lay-opinion
testimony.
Rule 701 of the Federal Rules of Evidence “allows a lay
witness to offer opinions that are (a) ‘rationally based on the
witness’s perception,’ (b) ‘helpful’ to the jury, and (c) ‘not
based on scientific, technical, or other specialized
knowledge within the scope of’ expert testimony.” Gadson,
763 F.3d at 1206 (quoting Fed. R. Evid. 701). This rule
applies with equal force to a law-enforcement witness: a
police officer may have knowledge derived specifically from
an investigation, and he may offer opinions based on that
UNITED STATES V. PEREZ 17
knowledge, but his employment does not endow him with
any freestanding license to offer opinions. For instance, he
may offer interpretations of “ambiguous conversations
based upon his direct knowledge of the investigation,”
Freeman, 498 F.3d at 904, or translate the drug jargon used
by the targets of his investigation, see United States v. Reed,
575 F.3d 900, 923 (9th Cir. 2009). But he may not “testify
based on speculation, rely on hearsay or interpret
unambiguous, clear statements.” United States v. Lloyd,
807 F.3d 1128, 1154 (9th Cir. 2015) (internal citation
omitted) (prejudicial error to admit statement that
“[e]verybody that [the witness had] ever worked with will
always stretch the truth and make . . . outright lies especially
in certain techniques”). Guided by these principles from our
case law, we evaluate each officer’s testimony in turn.
Prison Investigator Joe Guadian
Guadian testified on the fourth and fifth days of trial,
offering background on the Eme before analyzing the
tattoos, associations, visitations, funds deposits, and
communications of Eme members incarcerated at Florence,
particularly Martinez. Guadian expressly based his
testimony on information gleaned from his investigation of
the Eme, his personal observations of Martinez, and his
interaction with other Eme inmates. Leonidas and
Hernandez posit that much of Guadian’s testimony was
“classic expert testimony,” but they did not so object at trial;
their few objections did not serve to bring the competency
issue to the trial court’s attention. 3 Review is thus for plain
error. See Gadson, 763 F.3d at 1209.
3
A defendant who fails to object to lay-opinion testimony under
Rule 701 may nevertheless preserve his objection—and trigger abuse-
18 UNITED STATES V. PEREZ
Leonidas and Hernandez assert that, because the sort of
testimony offered by Guadian has been elicited from expert
witnesses in other cases, it cannot be lay-opinion testimony
here. But whether evidence is more properly offered by an
expert or a lay witness “depends on the basis of the opinion,
not its subject matter.” United States v. Barragan, 871 F.3d
689, 704 (9th Cir. 2017). The basis of Guadian’s opinions—
his prolonged and searching scrutiny of the subject
enterprise—entitled him to opine on most of the subjects of
his testimony. See Freeman, 498 F.3d at 902 (an officer may
“interpret ambiguous statements based on his general
knowledge of the investigation”). Guadian knew about the
money Martinez received in his inmate account, for
example, because he tracked the account. And he drew on
years of investigating CLCS and the Eme in interpreting
ambiguous terms in Martinez’s letters—jargon like “rent”
and code phrases like “higher court judge.”
While some of Guadian’s opinions—such as his foray
into the Eme’s Mayan roots—arguably transgressed Rule
701’s restrictions, we cannot say that any error meets our
plain-error standard. That is, even if the district court should
not have admitted isolated aspects of Guadian’s testimony,
its error in declining to intervene sua sponte was not “plain,”
did not “affect[] substantial rights,” and did not “seriously
affect[] the fairness, integrity, or public reputation” of the
trial. Pelisamen, 641 F.3d at 404 (internal citation omitted).
Asked repeatedly at oral argument about what prejudice
Leonidas and Hernandez suffered because of the admission
of Guadian’s opinions on the history of the Eme and its
of-discretion review on appeal—if he objects to “hearsay, speculation,
and lack of foundation,” which serves to “raise the essence of these
concerns.” Freeman, 498 F.3d at 904. No such objections were made
here.
UNITED STATES V. PEREZ 19
Mayan roots, counsel was unable to point to a single
concrete connection between the offending opinions and
Appellants’ convictions. See, e.g., Tr. of Oral Arg. at 5:36–
5:59; 8:01–8:07; 15:22–16:24.
Counsel’s inability to point to any actual prejudice from
the district court’s admission of Guadian’s opinions
reinforces what is obvious: allowing Guadian to testify as
he did was not plain error.
Special Agent Paul Keenan
Special Agent Keenan, the FBI’s lead case agent,
testified on the trial’s tenth and eleventh days. Appellants
repeatedly objected to the relevance and foundation of
Keenan’s testimony; review is thus for abuse of discretion.
See Freeman, 498 F.3d at 904.
Keenan testified about activities he observed and
conducted during the investigation he led into CLCS,
including surveillance of members’ meetings and drug
distribution efforts; wiretaps of their phones; controlled
purchases from gang members; and the results of searches of
CLCS-affiliated properties. He matched gang members to
monikers and vice versa, translated gang jargon, and
identified indicia of drug trafficking, such as small plastic
bags and digital scales. None of this testimony was
impermissible under Rule 701. Keenan directly observed
the communications, meetings, and searches he described.
And while his comprehension of jargon and knowledge of
drug trafficking would be suitable subjects for expert
testimony, his investigation into CLCS was a proper basis
for offering his lay opinions on these subjects. See Gadson,
763 F.3d at 1209. The district court did not abuse its
discretion in allowing Keenan’s testimony.
20 UNITED STATES V. PEREZ
Special Agent Manuel Rodriguez
FBI Special Agent Rodriguez testified on the eleventh
day of trial. We review the district court’s admission of
Rodriguez’s testimony for abuse of discretion; Appellants’
foundation objection served to raise their concerns to the
district court. See Freeman, 498 F.3d at 904.
Rodriguez’s testimony mirrored that of Keenan: he
identified callers on wiretaps by their voices, detailed FBI
surveillance of the CLCS figures at issue, and matched gang
members to their monikers and vice versa. He offered a few
specific opinions that implicate Rule 701: Rodriguez
interpreted graffiti and opined that when Pantoja asked
Guillen if Pantoja could “take [his] boy to practice
tomorrow,” he was really asking if he could deliver drug
proceeds to Guillen.
Rodriguez’s interpretation of the wiretapped
conversation between Pantoja and Guillen is just the kind of
“ambiguous conversation[]” a lay witness with direct
knowledge of an investigation—and, in this case, long hours
spent listening to wiretaps and observing meetings—can
clarify for the jury under Freeman. 498 F.3d at 904. The
translation of Pantoja’s coded language required no
technical or specialized knowledge, see Fed. R. Evid. 702—
just familiarity with the subjects. Nor was it paraphrasing
“unambiguous, clear statements.” Lloyd, 807 F.3d at 1154.
See also Gadson, 763 F.3d at 1231 (Berzon, J., concurring
in part and dissenting in part). Likewise, telling the jury that
he thought the graffiti letters “XVIII” stood for “18”
required no hidden calculus or reliance on hearsay, as
Appellants allege.
Even if the district court abused its discretion in allowing
Rodriguez’s testimony, we are convinced the error was
UNITED STATES V. PEREZ 21
harmless. Most of Rodriguez’s testimony—like that of the
other officers—simply provided the jury with informative
but only tangentially relevant information about CLCS’s
overall activities and the means by which the police
investigated them. We cannot imagine that the jury’s
hearing that “XVIII” meant “18,” for example, had any
discernible effect on their verdict as to whether Appellants
conspired to distribute narcotics. We have no difficulty in
rejecting Appellants’ challenge to Rodriguez’s testimony.
Detective Daniel Jenks
Finally, LAPD Detective Jenks testified on the twenty-
fourth trial day. Jenks summarized the content of
(1) wiretapped calls made by Murillo, including translations
of gang slang, (2) jail phone calls made to Perez, and
(3) searches, interviews, and arrests conducted after baby
Garcia’s murder. Leonidas and Hernandez challenge
Jenks’s opinions on the Murillo and Perez calls as improper
under Rule 701. But Leonidas and Hernandez said nothing
at trial about the Perez calls; it was Perez’s counsel who
objected to their introduction, and only after Jenks offered
his opinion on the contents of the Murillo calls. The district
court therefore lacked timely notice of Appellants’ objection
to Jenks’s opinions on the Murillo calls—which Leonidas
and Hernandez now press on appeal—until after Jenks had
finished opining on them. The Perez calls have nothing to
do with Leonidas and Hernandez. Allowing Jenks to offer
his opinion on them did not affect Leonidas and Hernandez
in any way. That leaves the Murillo calls. Because there
was no relevant objection until after Jenks had already
opined on their meaning, we evaluate whether the court’s
failure to intervene sua sponte to prevent the testimony was
plain error.
22 UNITED STATES V. PEREZ
In a few places, Jenks’s testimony approached the line of
permissibility under Rule 701. For instance, the jury was
played a recording of a conversation between Murillo and a
friend, in which Murillo, describing the requirement that
those who sold drugs in CLCS territory pay rent, told the
friend, “[‘C]ause I mean ain’t . . . nobody doing no dope
slanging for free, dog. I don’t care who.” Jenks told the jury
this meant “that nobody gets to sell for free; they’re going to
have to pay, basically, a tax or a fee to sell narcotics.” This
approaches the line Judge Berzon warned about in her partial
concurrence in Gadson: rather than translating slang or
ambiguous conversations, Jenks simply paraphrased
Murillo’s words in a way that made their incriminating
nature clearer. See 763 F.3d at 1231 (Berzon, J., concurring
in part and dissenting in part).
But even if Leonidas and Hernandez might properly have
objected to the admission of Jenks’s opinions at trial, this is
plain-error review—and they come nowhere close to
alleging plain error. The line between lay and expert
testimony in this context, we have acknowledged, “is a fine
one.” Freeman, 498 F.3d at 904. Even granting, for sake of
argument, that any error in admitting Jenks’s opinions
should have been plain to the district court, Leonidas and
Hernandez cannot show that allowing the jury to hear those
opinions affected their substantial rights or the fairness of the
proceedings. A thorough examination of the transcripts of
Murillo’s phone conversations reveals they do not so much
as mention any Appellant’s name or moniker, nor do they
pertain in any way to Leonidas’s or Hernandez’s roles in
CLCS. There was no plain error in allowing this testimony.
2
Appellants concede that other lay witnesses—former
CLCS members—properly corroborated nearly all the
UNITED STATES V. PEREZ 23
officers’ challenged testimony, 4 but argue that those
witnesses—Pantoja, Delaguila, Alexander Serrano,
Villalobos, and Guillen—were “inherently suspect because
they were testifying in exchange for sentence reductions.”
But Appellants’ counsel deftly elicited the cooperators’
incentive to deceive on cross-examination; the jury was well
aware of the sentence reductions each was in line to receive,
and it chose to credit their testimony anyway. There is no
rule in our Circuit that a criminal conviction may not, as a
matter of law, rest on the testimony of government
cooperators. In our system, “[i]t is up to the jury . . . to
determine the credibility of a witness’ testimony.” United
States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir.
2005). We decline Appellants’ invitation to intrude on the
province of the jury.
And Appellants ignore the import of the agents’
testimony, which was not primarily to implicate Appellants
in illicit activity, but rather to prove the existence of a
criminal enterprise, which conducted its business through a
pattern of racketeering activity, including a conspiracy to
distribute narcotics. Dozens of other witnesses—lay and
expert, law enforcement and gang member—established
4
For example, Pantoja corroborated Guadian’s testimony as to the
meanings of 18th Street and Eme tattoos. Guillen deposited the money
in question in Martinez’s account and attested to that fact and others
regarding the inmate-funds system. Guillen also authenticated and
provided firsthand testimony about several of the letters Guadian
identified. Several witnesses corroborated Guadian’s testimony
regarding the Eme’s structure and authority. Keenan’s moniker opinions
were echoed by nearly everyone who took the stand, and while his
description of searches was novel, testimony about what those searches
uncovered—namely, narcotics—pervaded the trial. Jenks’s testimony
relating to Murillo’s calls—which did not so much as mention
Hernandez or Leonidas—was confirmed by numerous witnesses who
testified about CLCS’s drug dealing and gangbanging activities.
24 UNITED STATES V. PEREZ
CLCS’s narcotics and racketeering endeavors. Given “the
overwhelming evidence” that the enterprise and conspiracy
existed based on other witnesses’ testimony, Lloyd, 807 F.3d
at 1168, we have more than “a fair assurance that the jury
was not substantially swayed by the error,” Gadson,
763 F.3d at 1208 (internal quotation marks and citation
omitted).
The district court diligently patrolled the line between
lay and expert testimony. In those few instances in which
admission of these four witnesses’ testimony was error,
Appellants suffered no prejudice. We decline to disturb
Appellants’ convictions on this basis.
C
Perez challenges his convictions on four counts, alleging
the district court improperly instructed the jury on the
extraterritorial application of the VICAR statute at issue.
We review de novo both a district court’s determination of a
statute’s extraterritorial reach, see United States v. Ubaldo,
859 F.3d 690, 699 (9th Cir. 2017), and jury instructions
“challenged as misstatements of law,” United States v.
Kleinman, 880 F.3d 1020, 1031 (9th Cir. 2017) (internal
citation omitted).
1
Federal statutes are presumed to apply only within
American territorial jurisdiction. See Foley Bros., Inc. v.
Filardo, 336 U.S. 281, 285 (1949). The so-called
presumption against extraterritoriality has both descriptive
and normative justifications: it is based in part on “the
commonsense notion that Congress generally legislates with
domestic concerns in mind,” Smith v. United States, 507 U.S.
197, 204 n.5 (1993), and it serves to prevent “unintended
UNITED STATES V. PEREZ 25
clashes between our laws and those of other nations which
could result in international discord,” EEOC v. Arabian Am.
Oil Co., 499 U.S. 244, 248 (1991). Unless a statute gives “a
clear, affirmative indication that it applies extraterritorially,”
it covers only domestic conduct. RJR Nabisco, Inc. v.
European Cmty., 136 S. Ct. 2090, 2101 (2016).
RJR Nabisco lays out a two-step process for determining
whether a statute has extraterritorial effect. First, we ask
“whether the presumption against extraterritoriality has been
rebutted.” Id. The presumption “can be rebutted only if the
text provides a ‘clear indication of an extraterritorial
application.’” WesternGeco LLC v. ION Geophysical Corp.,
138 S. Ct. 2129, 2136 (2018) (quoting Morrison v. Nat’l
Australia Bank, Ltd., 561 U.S. 247, 255 (2010)). Second, if
the statute does not apply extraterritorially, we ask “whether
the case involves a domestic application of the statute”; that
is, whether “the conduct relevant to the statute’s focus
occurred in the United States.” RJR Nabisco, 136 S. Ct.
at 2101. 5
5
Early in this doctrine’s development, the Supreme Court suggested
that the presumption should not apply equally to “criminal statutes which
are, as a class, not logically dependent on their locality for the
government’s jurisdiction.” United States v. Bowman, 260 U.S. 94, 98
(1922). We have applied the presumption to criminal statutes, albeit
without mentioning Bowman. See Ubaldo, 859 F.3d at 700. And most
courts of appeals applying Bowman still require the government to show
that the presumption against extraterritoriality has clearly been rebutted
by the text of the statute. See, e.g., United States v. Garcia Soto, 948
F.3d 356, 360 (D.C. Cir. 2020); United States v. Hoskins, 902 F.3d 69,
96 (2d Cir. 2018); United States v. Vasquez, 899 F.3d 363, 373 n.6 (5th
Cir. 2018). But see United States v. Leija-Sanchez, 602 F.3d 797, 798
(7th Cir. 2010) (applying Bowman to hold VICAR applies
extraterritorially without relying on the text of VICAR to rebut the
presumption). Because we hold that the question of VICAR’s
26 UNITED STATES V. PEREZ
2
Perez finds fault in the district court’s instruction to the
jury on Counts One, Sixteen, Seventeen, and Eighteen of the
indictment. Count One charged a RICO conspiracy, while
the other three charged VICAR counts: Count Sixteen
charged conspiracy to murder, Seventeen charged
conspiracy to kidnap, 6 and Eighteen alleged attempted
murder, all under VICAR’s umbrella. 7 In instruction 52, the
district court told the jury, “The RICO and VICAR statutes
apply extraterritorially. It therefore is not necessary for the
government to prove, with respect to Counts One . . .
Sixteen, Seventeen, [and] Eighteen . . . that any part of the
charged crime took place within the United States.”
That instruction is wrong. 8 RJR Nabisco explicitly held
that RICO, 18 U.S.C. § 1962—the statute charged in Count
extraterritorial reach is controlled by RJR Nabisco, we do not grapple
with Bowman.
6
Perez does not challenge his conviction on Count Seventeen
because the jury found, with respect to Count Twenty’s conspiracy-to-
kidnap charge, that both the conspiracy’s origin and an overt act in
furtherance of the conspiracy took place in the United States. See Tr. of
Oral Arg. at 23:40.
7
Six California Penal Code sections formed the basis of Perez’s
VICAR convictions: Cal. Penal Code §§ 21(a), 31, 182, 187, 189, and
664. At the time of trial, § 21(a) defined attempt; § 31 outlined
accomplice liability; § 182 detailed conspiracy; § 187 defined murder;
§ 189 separated first- and second-degree murder; and § 664 laid out
punishments for inchoate offenses.
8
Whether it was wrong when the district court gave it in 2012 is
another question. During the time between final judgment and
submission after oral argument on appeal, the law of extraterritoriality
changed at least twice in our Circuit. See United States v. Chao Fan Xu,
UNITED STATES V. PEREZ 27
One—may have extraterritorial effect, “but only to the
extent that the predicates alleged in a particular case
themselves apply extraterritorially.” 136 S. Ct. at 2102. And
there is an evident analogy between RICO and VICAR, the
basis of Perez’s convictions on Counts Sixteen and Eighteen.
VICAR incorporates RICO’s definition of “racketeering
activity,” see 18 U.S.C. § 1959(b)(1), and it, too, brings
under its umbrella some wholly extraterritorial acts, such as
the federal prohibition on a United States national killing
another United States national abroad, see id. § 1959(a)(1);
id. § 1119(b). In light of this authority, then, VICAR at least
may reach a crime committed abroad with sufficient nexus
to the conduct of an enterprise’s affairs.
But VICAR does not reach all crimes committed in other
countries. If the laws of the United States or the States
cannot reach foreign conduct, neither may VICAR. And the
predicate crimes with which Perez was charged—
California’s attempted murder statute and its definitional
components—do not proscribe wholly extraterritorial acts.
California’s jurisdictional statutes and case law explicitly
rule out punishing an act committed entirely in another
country: California may exercise its “territorial jurisdiction
over an offense if the defendant, [1] with the requisite intent,
[2] does a preparatory act in California that is more than a de
minimis act toward the eventual completion of the offense.”
People v. Betts, 103 P.3d 883, 887 (Cal. 2005). See also Cal.
Penal Code § 778a(a).
706 F.3d 965 (9th Cir. 2013) (RICO does not apply extraterritorially),
abrogated by RJR Nabisco, 136 S. Ct. at 2102 (RICO reaches foreign
conduct to the extent its predicates do). The district judge here did an
exceptional job handling this complex case involving multiple
defendants and multiple counts that would have posed a challenge to
even the most conscientious jurist.
28 UNITED STATES V. PEREZ
It may well be that California could exercise its
jurisdiction over the conduct charged here: even though the
California murder statute does not cover wholly
extraterritorial conduct, the government presented
substantial evidence that Perez joined an existing conspiracy
to murder Macedo formulated in the United States, and that
his conduct thus came within the statute’s domestic “focus.”
See RJR Nabisco, 136 S. Ct. at 2101; Cal. Penal Code
§ 778a(b) (allowing criminal sanction for a person who
“within this state, kidnaps another person . . . and thereafter
carries the person into another state or country and commits
any crime of violence or theft against that person”). See also
People v. Brown, 109 Cal. Rptr. 2d 879, 881–83 (Cal. Ct.
App. 2001) (California had jurisdiction to prosecute a doctor
who caused victim’s death through botched amputation
performed in Mexico—but who picked the victim up and
received payment in California). The government presses
this point on appeal, arguing that “conduct relevant to the
statute’s focus clearly occurred in the United States.” But
the jury deciding Perez’s guilt was instructed that it could
convict Perez without finding any of his conduct occurred in
the United States. Because California requires the
formulation of criminal intent—and a non-de-minimis act in
furtherance of the crime’s commission—in California, the
district court’s instruction was in error.
3
Even though the extraterritoriality instruction to the jury
misstated the law, “[a]n improper jury instruction does not
require reversal if the error is harmless.” United States v.
Garcia, 729 F.3d 1171, 1177 (9th Cir. 2013). See also
Chapman v. California, 386 U.S. 18, 24 (1967). A
“constitutional” error is only harmless if we are satisfied
“beyond a reasonable doubt that the . . . instruction . . . did
UNITED STATES V. PEREZ 29
not contribute to the guilty verdict.” Kleinman, 880 F.3d at
1035. Whether a jury-instruction error is constitutional is
sometimes “not clear.” United States v. Hernandez,
476 F.3d 791, 801 (9th Cir. 2007). Where that error lies in
defining the offense, we have required harmlessness to be
proven beyond a reasonable doubt. See, e.g., Neder v.
United States, 527 U.S. 1, 19–20 (1999) (error subject to
harmless-error review where the instruction omitted an
element of the offense); Garcia, 729 F.3d at 1177–78
(erroneous definition of manslaughter was constitutional
error). While the district court’s misstatement of 18 U.S.C.
§ 1959’s geographic reach was not the omission of an
element (like the errors in Neder and Garcia), it was
tantamount to such an error.
That error incorrectly described the district court’s
authority to hail Perez before the court and to punish him for
conduct occurring outside its physical jurisdiction. Like the
statutory elements in Neder and Garcia, a nexus between
American territory and Perez’s participation in the crimes
alleged is a necessary condition for his conviction where, as
here, the statute does not reach Perez’s purely extraterritorial
criminal conduct. As a result of the error, the jury was
wrongly told it could find him guilty for crimes occurring
solely in Mexico. We think this error has a constitutional
due process dimension: it relieved the United States of the
burden of proving the required connection between
American territorial jurisdiction and the crimes in Counts
One, Sixteen, Seventeen, and Eighteen for which Perez
stood trial in the Central District of California. See United
States v. Davis, 905 F.2d 245, 248–49 (9th Cir. 1990)
(framing extraterritorial application of a statute in due
process terms); cf. In re Winship, 397 U.S. 358 (1970) (proof
of a criminal charge beyond a reasonable doubt required by
due process). We therefore evaluate whether the
30 UNITED STATES V. PEREZ
instructional error as to those Counts was harmless beyond a
reasonable doubt.
We see three considerations to weigh in our
harmlessness calculus: (1) the weight of the evidence
establishing the conspiracy’s beginning in this country;
(2) the jury’s special finding regarding the date on which the
conspiracy began; and (3) the court’s instruction on Count
Sixteen, wherein the jury heard that to convict Perez of
conspiracy to murder, it must find that “an overt act was
committed in this state.” On the basis of all three factors
combined, we find the instructional error harmless as to
Count Sixteen, but reverse as to Count Eighteen where no
contrary instruction cured the initial error.
i
Our harmless-error standard emphasizes that where
evidence of a defendant’s guilt is “overwhelming,” even
significant jury-instruction error can be harmless. See, e.g.,
United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015).
However, failing to instruct on an element of a crime is not
harmless if there is sufficient evidence that the jury could
have found in favor of the defendant if properly instructed.
Neder, 527 U.S. at 19.
At trial, the government presented compelling evidence
that the conspiracy to murder Macedo began in California
shortly after Garcia’s death. The jury heard testimony that
the Eme-mandated “green light”—the authorization for all
Southern California Hispanic gangs to punish CLCS for
baby Garcia’s murder—was “automatic” as soon as the
infant died. Isaac Guillen told the jury that a gang that fails
to “clean [its] own house” by taking out the murderer of a
child starts “getting hit” by other gang members in lockup,
UNITED STATES V. PEREZ 31
and that other Eme members would expect Martinez to
green-light CLCS members if they had killed an infant.
Pantoja’s testimony was key. He was repeatedly pressed
about the origins of the conspiracy to murder Macedo,
testifying that if Macedo was left alive, all of CLCS would
come under sustained attack from other gangs. He told the
jury his plan was to kill Macedo all along, that Macedo’s
death was necessary to spare CLCS, and that he started
preparing immediately to kill Macedo. The jury was entitled
to credit Pantoja’s testimony: the evidence was sufficient to
support Perez’s convictions. See Part II.D.2, infra.
But sufficient is not overwhelming. As Perez points out,
Pantoja gave shifting and contradictory explanations for
bringing $30,000 to Mexico, ultimately telling the jury he
did not know why he brought the money along. (Perez
claims the $30,000 was to pay to board Macedo in Mexico—
money that would be unnecessary if the plan were to kill
Macedo the whole time.) Perez also elicited from Pantoja
that, despite the latter’s earlier testimony that everyone knew
a green light automatically attached to the murderer of a
child, Macedo himself was apparently completely in the dark
about the ramifications of having killed Garcia.
These inconsistencies bolster the defense theory of the
case: that Pantoja planned to hide Macedo out in Mexico—
and brought money to board him there—but ultimately
changed his mind in Mexico and ordered Macedo’s death.
And Perez made his case plain by hammering Pantoja’s trial
statements’ inconsistency with Pantoja’s previous proffers,
in which Pantoja had told the government he ordered
Macedo taken to Mexico to hide him out, not to kill him.
Our precedents establish a high bar for finding harmlessness
beyond a reasonable doubt. See, e.g., Neder, 527 U.S. at 19
(error not harmless where defendant “contested the omitted
32 UNITED STATES V. PEREZ
element and raised evidence sufficient to support a contrary
finding” (emphasis added)). Pantoja was the government’s
key witness as to the conspiracy’s origins. His credibility
problem and conflicting accounts of the plan to kill Macedo
would have given the jury ample ground “to support a
contrary finding.” Id. Thus, while the weight of the
evidence cuts in favor of harmlessness, we do not find that
the evidence alone is a sufficient basis for finding the jury-
instruction error harmless.
ii
In finding Perez guilty of Count One, the jury made a
special finding that the conspiracy to murder Macedo began
“on or about September 15, 2007”—the date of baby
Garcia’s murder—and continued through “on or about
September 21, 2007”—the day Perez and Murillo tried to kill
Macedo. Murillo picked up Macedo in the Los Angeles area
to take him to Mexico late at night on September 19, and
they arrived in Tijuana, Mexico, early in the morning on
September 20—four days after Garcia’s murder and just a
day before the attempted murder of Macedo.
That the jury found the conspiracy began “on or about
September 15” is strong evidence it believed the
government’s case that the plan was hatched in the Central
District of California. It would be strange indeed for a juror
who believed Perez’s theory of the case to sign off on this
finding despite believing it set the conspiracy’s beginning
five days too early—on a six-day timeline. But, as one of
the district court’s earlier instructions clarifies, “on or about”
is flexible: the court told the jury it need only find the crime
was committed “on a date reasonably near the date alleged
in the indictment,” not “precisely on the date charged.” Our
case law holds that eighteen days is “reasonably near” the
date alleged, see United States v. Hinton, 222 F.3d 664, 672–
UNITED STATES V. PEREZ 33
73 (9th Cir. 2000), though two years is not, United States v.
Tsinhnahijinnie, 112 F.3d 988, 991–92 (9th Cir. 1997). With
this background in mind, we cannot say we are convinced
beyond a reasonable doubt that every juror who agreed the
conspiracy began “on or about September 15” definitively
ruled out that it began on September 20.
iii
The final piece of this harmlessness puzzle is the most
important: in its specific instruction regarding Count
Sixteen—the VICAR conspiracy to murder—the district
court told the jury that, in order to convict, it must find,
among other elements, that “an overt act was committed in
this state by one or more of the persons” involved. The jury
was thus correctly apprised of the facts necessary to trigger
California’s jurisdiction over the crime. See Betts, 103 P.3d
at 887. Because it came immediately after the incorrect
instruction and more specifically addressed the jurisdictional
question, jurors deciding Perez’s guilt on that count could be
left with little doubt that they could not convict Perez solely
on the basis of his conduct in Mexico. Together with the
evidence of the conspiracy’s origin in California, and the
jury’s special finding on Count One, the correct instruction
on Count Sixteen convinces us that the district court’s jury-
instruction error was harmless as to that count, and Perez’s
conviction for VICAR conspiracy to murder should
therefore stand. 9
9
Because we hold with regard to Count Sixteen—and Perez
concedes as to Counts Seventeen and Twenty—that his convictions were
properly based on territorial conduct, we also affirm his conviction on
Count One, RICO conspiracy. 18 U.S.C. § 1962(d) does not require that
each conspirator commit two independent predicate offenses. See
Salinas v. United States, 522 U.S. 52, 65–66 (1997). But a conspirator’s
34 UNITED STATES V. PEREZ
The same cannot be said for Perez’s conviction on Count
Eighteen, VICAR attempted murder. No correct instruction
cured the earlier, wrongful instruction. Indeed, the presence
of the territorial requirement in Count Sixteen’s instruction
may have served only to draw the jury’s attention to the lack
of such a domestic requirement on Count Eighteen. Because
the weight of the evidence and the special finding alone do
not eliminate all reasonable doubt about what the jury
determined about the location of the conspiracy’s origin, we
reverse Perez’s conviction on Count Eighteen. The
government may elect to retry Perez on that count following
remand, or, if the government decides not to retry him, the
district court can simply resentence Perez without Count
Eighteen.
D
Finally, all four Appellants challenge the sufficiency of
the evidence underlying their convictions. We review the
denial of a defendant’s motion to acquit de novo. See United
States v. Christensen, 828 F.3d 763, 780 (9th Cir. 2015).
The evidence underlying a conviction is sufficient if,
“viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Phillips, 929 F.3d 1120, 1123 (9th Cir.
2019) (internal citation omitted). See also Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
individually committing multiple predicate offenses is certainly
sufficient to support a RICO conspiracy conviction where, as here, the
other statutory requirements are met.
UNITED STATES V. PEREZ 35
1
Hernandez and both Iraheta brothers challenge the
sufficiency of the evidence underlying their convictions on
Count Two, narcotics conspiracy. All three moved for
acquittal after the verdict was returned. To convict these
Appellants for narcotics conspiracy, the government was
required to show: (1) there existed an agreement between
two or more persons to possess with intent to distribute or to
distribute crack cocaine or methamphetamine or both; and
(2) Appellants joined the agreement knowing of its purpose
and intending to help accomplish that purpose. Little need
be said regarding the existence of an agreement to distribute
drugs: the evidence showed drug distribution was the
cornerstone of CLCS’s enterprise, its raison d’etre. Nearly
every witness who took the stand testified to some aspect of
CLCS’s pervasive regime of crack dealing. The evidence of
its existence was truly overwhelming.
So too was the evidence of Hernandez’s central role in
the charged conspiracy. Multiple witnesses referred to
Hernandez as a “shot caller” or leader of CLCS’s drug-
trafficking operation. Alexander Serrano, who was the lead
rent collector at Eighth and Burlington, testified that
Hernandez “was the one in charge of [Westlake Avenue]
collecting rent” in 2000; Villalobos and Delaguila said the
same. Villalobos’s testimony was particularly informative:
PROSECUTOR: Okay. What role did
Defendant Hernandez have at Westlake?
VILLALOBOS: [Hernandez] had ultimate
control of who was going to sell—what
material is going to be on the street; what
Mayorista he wants there—all—controlled
all the narcotics on the streets . . .
36 UNITED STATES V. PEREZ
Westlake was regarded as one of the crown jewels of
CLCS’s narcotics operation: Pantoja testified that
Hernandez collected between $5,000 and $8,000 per week
in rent from the street’s traqueteros and mayoristas, and that
it was Hernandez’s idea to begin taxing vendors like
Clemente. Guillen testified that Hernandez was part of
Martinez’s “legal team”—the “top echelon” of his trusted
lieutenants, and that Hernandez was charged with delivering
the proceeds from CLCS’s narcotics sales to Guillen when
Pantoja was unavailable. There is more, but it is clear that,
viewing this evidence in the light most favorable to the
prosecution, a reasonable trier of fact could convict
Hernandez for his participation in the narcotics conspiracy.
Likewise, Vladimir Iraheta’s participation in CLCS’s
narcotics operation cannot seriously be questioned.
Vladimir concedes that “he has been a gang affiliate” with
“a history of prior arrests for narcotics related conduct.” But
he claims there was “scant evidence concerning the activities
of or any acts actually performed by” him. He blames “an
inflamed jury” for convicting him on the narcotics
conspiracy because of the evidence of murder presented
against him.
At trial, the government put on copious evidence that
Vladimir played an integral role in CLCS’s drug-trafficking
operation. Like Hernandez, Vladimir was held to be among
Martinez’s “legal team”—his trusted lieutenants in CLCS
territory. Serrano characterized Vladimir as Hernandez’s
“muscle.” Villalobos told the jury Vladimir became
Hernandez’s deputy overseeing fifteen to twenty traqueteros
on Westlake Avenue around 2001 or 2002, and that
Villalobos gave money collected from traqueteros to
Vladimir to bring to Guillen. Vladimir protests that his mere
association with CLCS is not enough to convict him for
UNITED STATES V. PEREZ 37
participating in the narcotics conspiracy. He’s right: “mere
gang membership” is not enough to show that a person has
joined a criminal conspiracy. See United States v. Bingham,
653 F.3d 983, 997 (9th Cir. 2011). Not every CLCS member
is guilty of taking part in a narcotics conspiracy by virtue of
his gang allegiance. Unfortunately for Vladimir, the
evidence shows far more than “mere gang membership,” or
mere presence in CLCS territory. The government put on
evidence sufficient for rational jurors to find Vladimir was a
core member of CLCS’s drug-trafficking operation. He
enriched it by supervising drug sales, he protected it with
violence, and he helped launder its profits.
Vladimir complains that the government’s narcotics-
conspiracy case against him largely rested on Villalobos’s
testimony. Vladimir’s argument goes like this: because
Villalobos was the chief witness in the government’s murder
case against him, and because the jury hung on that count,
the jury necessarily disbelieved Villalobos, so his testimony
linking Vladimir to the narcotics conspiracy cannot be
credited. Putting aside that Villalobos was far from the only
witness who implicated Vladimir in CLCS’s narcotics
activity, the district court was right when, in denying
Vladimir’s motion to acquit, it said, “[T]he jury can believe
Mr. Villalobos on one issue but not other issues.” Indeed,
the jury’s willingness to credit parts of Villalobos’s
testimony while disregarding others showcases its
thoughtful, discerning approach to the case; there is no
evidence the jury was “inflamed” against Vladimir. It was
entitled to find him guilty based on the evidence established
at trial. Vladimir’s narcotics-conspiracy conviction is
affirmed.
Leonidas Iraheta’s sufficiency claim fails, too. Witness
after witness identified Leonidas as a core member of
38 UNITED STATES V. PEREZ
CLCS—one who sold drugs, protected CLCS territory with
violence, and helped to run its business operations. Like his
brother, Leonidas was considered part of Martinez’s “legal
team.” Pantoja testified that, in 2000, Leonidas assisted
Hernandez in collecting rent from one of CLCS’s Westlake
crack-dealing locations, and that Leonidas accompanied him
on missions to intimidate the rival Rockwood gang.
Crucially, Pantoja also testified that he personally witnessed
Leonidas selling crack and meth in CLCS territory.
Villalobos told the jury that Leonidas distributed drugs on
Westlake Avenue. Delaguila corroborated Pantoja’s
testimony that Leonidas collected rent from drug sales. As
with his co-defendants, the evidence that Leonidas willingly
joined and helped further the purpose of CLCS’s narcotics
machine is overwhelming. His conviction on this count is
affirmed.
2
Perez challenges the sufficiency of the evidence giving
rise to his three conspiracy convictions: Counts Sixteen
(VICAR conspiracy to murder), Seventeen (VICAR
conspiracy to kidnap), and Twenty (garden-variety
conspiracy to kidnap, 18 U.S.C. § 1201(a)(1), (c)). The first
basis of his challenge is the supposed unreliability of
Pantoja’s testimony. 10 Having addressed that contention and
found it wanting, see Part II.C.3.i, supra, we will not belabor
it any further. As with the sufficiency of the evidence
underlying the other Appellants’ convictions, we review de
novo the district court’s denial of Perez’s motion to acquit,
10
The government characterized Perez’s claim that Pantoja perjured
himself as a due-process challenge under Napue v. Illinois, 360 U.S. 264
(1959), and its progeny. Perez expressly disavows a Napue claim, so we
need not address it.
UNITED STATES V. PEREZ 39
affirming the conviction if, “viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” Phillips, 929 F.3d at 1123.
In addition to his attack on Pantoja’s credibility, Perez
argues that, even if there was sufficient evidence of the
conspiracy’s originating in the United States, there was
insufficient evidence that he joined that conspiracy in this
country. 11 Perez does not deny his presence at the Mexicali
cliffside, nor that he tried to murder Macedo there. But he
denies that a reasonable jury could have found that he joined
the conspiracy in California.
The evidence of Perez’s joining the conspiracy in
California is admittedly less than overwhelming. But
examining that evidence in the light most favorable to the
government, it was sufficient to permit a reasonable jury to
find beyond a reasonable doubt that Perez joined the
conspiracy in California. Pantoja told jurors emphatically
and repeatedly that the conspiracy began in California: he
told them he ordered Murillo to take Macedo to Mexico to
kill him shortly after Garcia’s death, and that Murillo in turn
requested Perez’s help. It required no great leap in logic for
a juror to infer that Murillo informed Perez of the plan’s
details upon enlisting his help. Other evidence in the record
also supports this conclusion. Perez took precautions that
could be interpreted as demonstrating his knowledge that the
plan was always to murder Macedo: Perez made the group
stop on the way to Mexico so he could retrieve an
identification card that would allow him to reenter the
11
Perez does not challenge the substantive elements of the murder
or kidnapping charges, just his participation in the conspiracy to commit
those crimes.
40 UNITED STATES V. PEREZ
United States, but refused to allow Macedo to get his own
identification card; and Perez told Aquino not to use real
names or monikers on the trip, indicating that Perez knew
the purpose of the trip was not benign. Finally, the counter-
narrative Perez presents is far less plausible. As Perez tells
it, without more than a few hours’ advance notice, he agreed
to go along with Murillo, Aquino, and Macedo on a multi-
day, nonlethal trip to Mexico without clear purpose;
acquiesced somewhere along the way in a plan to murder
Macedo; threw a rope around the young man’s neck; and
yelled, “Die, motherfucker, die!” before casting Macedo’s
body off a cliff. The evidence does not compel that unlikely
conclusion—a reasonable jury could conclude otherwise
from the evidence presented. See Jackson, 443 U.S. at 318.
Perez’s conspiracy convictions are affirmed.
III
In addition to their merits-based arguments, Hernandez
and Leonidas challenge their sentences as both procedurally
erroneous and substantively unreasonable. 12 Beginning with
their procedural challenges, we “review the district court’s
interpretation of the Guidelines de novo, the district court’s
application of the Guidelines to the facts of the case for abuse
of discretion, and the district court’s factual findings for
clear error,” if the claim was preserved. United States v.
Treadwell, 593 F.3d 990, 999 (9th Cir. 2010), overruled on
other grounds by United States v. Miller, 953 F.3d 1095,
1103 n.10 (9th Cir. 2020). Where the claim was not
preserved, the district court’s determination is reviewed for
12
Because Perez’s conviction is reversed as to Count Eighteen, we
decline to reach his sentencing challenges at this time. See United States
v. Cortes, 757 F.3d 850, 866 (9th Cir. 2014) (sentencing appeal moot
where the court was already vacating conviction).
UNITED STATES V. PEREZ 41
plain error. 13 See, e.g., United States v. Valencia-Barragan,
608 F.3d 1103, 1108 (9th Cir. 2010). A sentence is
substantively reasonable if it is “sufficient, but not greater
than necessary” under the totality of the circumstances and
§ 3553(a) factors. United States v. Carty, 520 F.3d 984,
994–95 (9th Cir. 2008) (en banc). We do not adopt a
presumption of reasonableness purely because a sentence is
within Guidelines, but “when the judge’s discretionary
decision accords with the [Sentencing] Commission’s view
of the appropriate application of § 3553(a) in the mine run
of cases, it is probable that the sentence is reasonable.” Id.
at 994 (quoting Rita v. United States, 551 U.S. 338, 351
(2007)). We affirm the district court’s sentencing
determinations as to both Appellants because the court
correctly computed the applicable Sentencing Guidelines
and committed no reversible error.
A
Hernandez and Leonidas jointly object to the district
court’s drug weight calculation under U.S.S.G. § 2D1.1;
application of threat and firearm enhancements under the
same subsection; explication of § 3553(a) factors; and use of
judicial fact-finding, which Appellants style as a violation of
the Fifth and Sixth Amendments. Hernandez individually
objects to the court’s application of obstruction of justice and
managerial-role enhancements under U.S.S.G. § 2D1.1.
Leonidas individually objects on a Rule 32 basis, claiming
that the court below did not address his minor-role
adjustment argument. We hold that the district court’s only
error was in its application of the firearm enhancement to
13
Instances where the claim was not preserved are noted in our
discussion below. The reader should otherwise assume that it was
preserved.
42 UNITED STATES V. PEREZ
Hernandez, but that this error was harmless and therefore
does not warrant reversal.
1
Appellants attack the district court’s drug quantity
calculation on almost every front, but each blow misses the
mark. The district court properly utilized the multiplier
method to calculate the amount of drugs Appellants were
responsible for under U.S.S.G. § 2D1.1 in order to set a base
offense level. See Treadwell, 593 F.3d at 999–1000 (method
of approximation must be reviewed de novo); United States
v. Culps, 300 F.3d 1069, 1076–77 (9th Cir. 2002) (multiplier
method is appropriate where the “amount of drugs seized
does not reflect the scale of the offense”). “Under the
multiplier method, the district court accounts for the
defendant’s behavior over time by determining a daily or
weekly quantity, selecting a time period over which it is
more likely than not that the defendant was dealing in that
quantity and multiplying these two factors together.” Id.
at 1077.
The district court’s multiplier-method calculation
centered on the evidence adduced at trial, including
testimony about the amount of money collected weekly from
the Third and Westlake drug hub and the highest average
wholesale price of crack cocaine sold during the conspiracy.
That figure was multiplied to account for the amount of
drugs sold between 2000 and 2003, when both Hernandez
and Leonidas were working at the Westlake location on
behalf of CLCS, according to testimony found credible by
the court. See U.S.S.G. § 1B1.3, cmt. n.2 (defendant is
responsible “for all quantities of contraband with which he
was directly involved and . . . all reasonably foreseeable
quantities of contraband that were within the scope” of the
conspiracy). The district court’s final calculation yielded
UNITED STATES V. PEREZ 43
more than double the 25.2 kg threshold of crack cocaine
needed to support the base offense level of 38 that the court
selected as a result of its computation.
Appellants argue that the district court should have
applied the clear and convincing standard of proof in making
drug quantity determinations for sentencing. But we have
“repeatedly held that sentencing determinations relating to
the extent of a criminal conspiracy need not be established
by clear and convincing evidence.” Treadwell, 593 F.3d
at 1001. Further, we have specifically stated that “factual
disputes regarding drug quantity” should be resolved via the
preponderance of the evidence standard. United States v.
Flores, 725 F.3d 1028, 1035 (9th Cir. 2013). Appellants’
challenges to the district court’s drug quantity calculations
are all factual and/or related to the extent of the conspiracy
and their involvement therein. While it is not entirely clear
from the record what standard the district court applied to its
findings, to the extent that it used the preponderance of the
evidence standard in its drug quantity determination, there
was no error.
Somewhat more convincing is Appellants’ argument that
the dollar figures utilized by the district court were flawed.
They argue that the court should have used a higher price for
crack cocaine—$36,000 per kilogram retail, rather than the
$20,000 per kilogram wholesale price that it chose—and
should not have relied on the testimony of a co-conspirator
witness who provided the $8,000 per week sales figure. But,
in actuality, more than one witness testified to a similar sales
figure at trial where they were subject to cross-examination,
and the district court was entitled to rely on that information.
See United States v. Alvarez, 358 F.3d 1194, 1213 (9th Cir.
2004) (three coconspirators’ drug weight estimates were
sufficiently reliable where they testified under oath and were
44 UNITED STATES V. PEREZ
subject to cross-examination). Moreover, even if the district
court had utilized the $36,000 per kilogram figure that
Appellants prefer, the final quantity calculation would still
result in more than 25.2 kg of crack cocaine over three years,
again placing Appellants at a base offense level of 38. The
district court may have had good reason for choosing the
wholesale price rather than the retail price for its calculation,
given that testimony at trial supported the notion that
Hernandez and Leonidas acted as “wholesaler[s] to the little
homies,” and any arguable error was harmless. See, e.g., id.
(error in drug calculation is harmless if adjustment to correct
error does not lead to a lesser base offense level).
Finally, the record supports the district court’s
determination that both Appellants were continuously
working at the Westlake drug hub during the selected time
period of 2000 to 2003, with Hernandez running the show
and Leonidas and his twin brother acting as muscle. The
district court cited Appellants’ “long standing participation
in the scheme,” and found that the drug sales at Westlake
were “reasonably foreseeable in connection with the scope
of the defendant[s’] agreement as to the jointly undertaken
scheme.” See United States v. Ortiz, 362 F.3d 1274, 1275
(9th Cir. 2004) (conduct of a member of a conspiracy must
be “both in furtherance of jointly undertaken activity and
reasonably foreseeable” for it to be considered at
sentencing). Drug sales, and the money flowing from them,
were evidently consistent during the timeframe selected. See
Culps, 300 F.3d at 1081 (drug operation must be continuous
during period of time selected). Because we can find no
evidence, and Appellants present none, to dispute the time
period selected by the district court, evidence of the
continuous nature of the drug sales from the Westlake
location during that time, and Appellants’ extensive
connection to those drug sales, the district court did not err
UNITED STATES V. PEREZ 45
in its calculation of a base offense level of 38 for Hernandez
and Leonidas.
2
The district court applied two enhancements to the base
offense level calculation of both Leonidas and Hernandez: a
two-level enhancement for firearm possession and a two-
level enhancement for the use or direction of violence or
credible threats of violence. U.S.S.G. § 2D1.1(b)(1)–(2).
Both may be applied on the same facts. Id. § 2D1.1 cmt.
n.11(B).
A two-level firearm enhancement is proper if a defendant
possesses a weapon in furtherance of the drug trafficking
offense. Id. § 2D1.1(b)(1). In conspiracy cases, we look to
“all of the offense conduct, not just the crime of conviction,”
when determining if a defendant possessed a firearm in
furtherance of a scheme. United States v. Willard, 919 F.2d
606, 610 (9th Cir. 1990) (citing U.S.S.G. § 1B1.3(a)(2)).
Possession can include constructive possession, which
applies when there is “a sufficient connection between the
defendant and the contraband to support the inference that
the defendant exercised dominion and control over [it].”
United States v. Boykin, 785 F.3d 1352, 1364 (9th Cir. 2015)
(internal quotation marks omitted). See also U.S.S.G.
§ 2D1.1 cmt. n.11(A) (enhancement may be applied if
weapon “was present, unless it is clearly improbable that the
weapon was connected with the offense”).
No firearms were recovered in this case, however, and
none of the evidence cited by the district court indicates that
Hernandez possessed a firearm that may have been
connected to any offense. See United States v. Briggs,
623 F.3d 724, 731 (9th Cir. 2010) (reversal of sentence for
application of firearm enhancement where “defendant
46 UNITED STATES V. PEREZ
repeatedly bragged about the guns he had access to, but none
of these firearms was ever recovered”); United States v.
Miller, 890 F.3d 317, 328 (D.C. Cir. 2018) (“The District
Court plainly erred by imposing the enhancement because it
made no factual finding as to any nexus between those
firearms and Appellant’s drug convictions . . . .”). The
district court made no finding about which Appellant
possessed or controlled the firearm that was used in the
Barajas murder. Neither did the court explain whether
Hernandez may have had constructive possession over a
firearm that was found on a fugitive arrested by LAPD
officers at Hernandez’s apartment, or whether a firearm that
Hernandez apparently gave to Pantoja in 2000 for Pantoja’s
personal protection could in any way link back to
Hernandez’s possession during the course of the scheme—
we think both situations are improbable. See United States
v. Kelso, 942 F.2d 680, 682 (9th Cir. 1991) (reversal
warranted where enhancement was applied to defendant who
“may have had access to the gun, [but] there is no evidence
he owned it, or even was aware of its presence”).
Likewise, we cannot place any specific firearm in
Hernandez’s possession based solely on his general
involvement in “green-lighting” and “gangbanging.” Cf.
United States v. Heldberg, 907 F.2d 91, 94 (9th Cir. 1990)
(recovered gun was possessed during time period of
importation of drugs). Although the district court’s concern
about the CLCS tradition of violence is well supported on
this record, without any actual evidence of a firearm that
Hernandez may have exercised “dominion or control over,”
we cannot condone application of the enhancement.
Compare Briggs, 623 F.3d at 731, with Boykin, 785 F.3d
at 1364 (enhancement proper where agents recovered
firearms at defendant’s residence where he also conducted
drug sales); Willard, 919 F.2d at 609–10 (enhancement
UNITED STATES V. PEREZ 47
proper where guns were recovered at defendant’s place of
business).
The same is not true for Leonidas, however, because the
district court relied on testimony about his actual handling
of a firearm. Direct testimony established that Leonidas and
his brother, Vladimir, terrorized someone with a “12-gauge
shotgun,” and that Leonidas was seen by another witness
with two guns during the course of the conspiracy. There
was also evidence in the record that, in 2002, a police officer
observed Leonidas removing a stainless-steel handgun from
his waistband and placing it on the tire of a van shortly
before fleeing. The handgun was later recovered and
Leonidas was arrested. From these facts, the district court
could have reasonably concluded that, during the
conspiracy, Leonidas had constructive possession of a
firearm, which may have been used in furtherance of the
aims of the CLCS enterprise.
There was no error in applying the enhancement to
Leonidas and, although the district court erred in applying
the firearm enhancement to Hernandez, such error does not
require reversal. “When a defendant is sentenced under an
incorrect Guidelines range—whether or not the defendant’s
ultimate sentence falls within the correct range—the error
itself can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the
error.” Molina-Martinez v. United States, 136 S. Ct. 1338,
1345 (2016). But here, even without the two-level firearm
enhancement, the Guidelines range is the same. The correct
Guidelines calculation still yields a sentence
recommendation of life for Hernandez at offense level 43.
See U.S.S.G. Sentencing Table. The district court also made
quite clear that a sentence of life imprisonment was
warranted from the evidence introduced at trial. Any effect
48 UNITED STATES V. PEREZ
on Hernandez’s sentence was therefore harmless. See
United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5
(9th Cir. 2011) (per curiam).
Turning to the district court’s two-level enhancement for
use or direction of threats, we find no error in its application
to either Hernandez or Leonidas. While it may be based on
the same underlying circumstances as the firearm
enhancement, under U.S.S.G. § 2D1.1(b)(2), a separate two-
level enhancement can be imposed if “the defendant used
violence, made a credible threat to use violence, or directed
the use of violence.” Multiple witnesses testified that
Hernandez was in charge of gangbanging for CLCS, and
further evidence established that he took young members to
the neighboring Rockwood community to “put in work,”
during which time they killed a Rockwood gang member.
The district court also cited evidence of a threat by
Hernandez to throw someone off the roof of a building. At
Leonidas’s sentencing hearing, the district court again cited
his use of a 12-gauge shotgun to terrorize a witness, and also
credited testimony that Leonidas went along for a shooting
mission against the Burlington Locos gang and slashed a
gang member’s tires “as part of a . . . get-out-of-town
threat.” At a minimum, this evidence establishes, by a
preponderance of the evidence, that both Appellants credibly
threatened violence and that Hernandez also directed the use
of violence. The district court did not err in applying the
U.S.S.G. § 2D1.1(b)(2) threat enhancement to either
Hernandez or Leonidas.
3
Hernandez individually challenges the district court’s
application of an obstruction of justice enhancement under
U.S.S.G. § 3C1.1 and an aggravated-role enhancement
UNITED STATES V. PEREZ 49
under U.S.S.G. § 3B1.1(b) to his overall Guideline
calculation. We conclude that both were properly applied.
An obstruction enhancement is proper:
If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
the administration of justice with respect to
the investigation, prosecution, or sentencing
of the instant offense of conviction, and
(2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any
relevant conduct; or (B) a closely related
offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. Application Note 4(A) provides
examples of obstruction, which include “threatening,
intimidating, or otherwise unlawfully influencing a co-
defendant, witness, or juror, directly or indirectly, or
attempting to do so.” A defendant may be held responsible
for the actions of others if he “willfully caused” or “aided
and abetted” those acts. Id. § 3C1.1, cmt. n.9. We have
often affirmed sentencing enhancements under § 3C1.1
where the defendant intimidated, or shared information
about, an individual working as a police cooperator or
“snitch.” See, e.g., United States v. Scheele, 231 F.3d 492,
500 (9th Cir. 2000) (defendant used threatening language
and called police cooperator a “narc”); United States v.
Jackson, 974 F.2d 104, 106 (9th Cir. 1992) (defendant
passed around co-defendant’s cooperation agreement with
the words “rat” and “snitch” written at the top). “Where a
defendant’s statements can be reasonably construed as a
threat, even if they are not made directly to the threatened
person, the defendant has obstructed justice.” Id.
50 UNITED STATES V. PEREZ
At trial, a co-conspirator, Villalobos, testified that
Hernandez visited his home and told Villalobos’s wife that
he should not cooperate with law enforcement. Villalobos
also testified that Hernandez effectively called him out as a
cooperator at a downtown Los Angeles lockup. Hernandez
argues that these co-conspirator statements are not reliable
and are hearsay.
As noted earlier, the district court is entitled to rely on
co-conspirator testimony offered at trial. Alvarez, 358 F.3d
at 1213. And while a district court may consider “relevant
information without regard to its admissibility under the
rules of evidence applicable at trial,” U.S.S.G. § 6A1.3(a),
Hernandez is correct that “[c]hallenged information is
deemed false or unreliable if it lacks some minimal indicium
of reliability beyond mere allegation,” United States v.
McGowan, 668 F.3d 601, 606–07 (9th Cir. 2012) (internal
quotations omitted). Hernandez is also correct that the
testimony of Villalobos’s wife may well constitute hearsay-
within-hearsay, 14 but the lockup incident at the Metropolitan
Detention Center holding federal prisoners that Villalobos
himself witnessed firsthand provides a second basis for the
district court’s holding. Because we conclude that the
testimony about the lockup incident is not unreliable to the
degree of any of the cases cited by Hernandez, the district
court properly relied on it in applying the enhancement. Cf.
id. at 607–08 (the only evidence was transcript-based
testimony without opportunity for cross-examination or
observation for credibility); United States v. Hanna, 49 F.3d
14
Appellants’ counsel did not object on hearsay grounds when the
testimony was offered at trial, but it is unclear from the record whether
Villalobos’s wife is a co-conspirator whose statement would be
admissible over such an objection, as well as being an admission against
penal interest of the declarant.
UNITED STATES V. PEREZ 51
572, 577–78 (9th Cir. 1995) (the only evidence was
contradicted testimony, given at the sentencing hearing, of a
single event by co-defendant who had already pleaded guilty
and repeatedly invoked Fifth Amendment).
Similarly, there was no clear error in the district court’s
application of an aggravated-role enhancement to
Hernandez’s sentencing calculation. See United States v. Yi,
704 F.3d 800, 807 (9th Cir. 2013). A three-level
enhancement, as was utilized, is available for a defendant
who acts as “a manager or supervisor (but not an organizer
or leader) [where] the criminal activity involved five or more
participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(b). A court should consider “all persons involved
during the course of the entire offense” when deciding if an
organization is “extensive.” Id. § 3B1.1(b) cmt. n.3. The
introductory commentary for U.S.S.G. § 3B also notes that
the “determination of a defendant’s role in the offense is to
be made on the basis of all conduct,” including “all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” See
United States v. Tankersley, 537 F.3d 1100, 1110 (9th Cir.
2008) (noting that such considerations are “particularly
appropriate when sentencing members of a pervasive and
farranging [sic] criminal enterprise”); Ortiz, 362 F.3d
at 1275.
During Hernandez’s sentencing hearing, the district
court cited the testimony of four different co-conspirators to
support its conclusion that Hernandez was “a manager or a
supervisor” of the drug conspiracy. This included evidence
that Hernandez was in charge of the Westlake drug
distribution hub from 2000 to 2003, in charge of
gangbanging for an even longer period, and was part of the
“core group” and “top echelon legal team” of CLCS.
52 UNITED STATES V. PEREZ
Hernandez disputes this characterization of his involvement
and claims he was in fact a notorious partier who was absent
from many major gang decisions.
When viewing the conspiracy as a whole, it was clearly
both “extensive” and involved at least five other
participants, only one of which is necessary. See U.S.S.G.
§ 3B1.1(b). The district court was also correct in concluding
that Hernandez was a “manager or supervisor” because he
oversaw and exercised some control over one or more of the
other participants. See Gadson, 763 F.3d at 1222. Evidence
established that Hernandez played a large role in the
operation of the Westlake drug hub and was regarded as the
head of gangbanging. He directly oversaw the actions of the
two Iraheta brothers and exercised authority over many other
members of the gang, including traqueteros. See United
States v. Franco, 136 F.3d 622, 631 (9th Cir. 1998)
(“manager or supervisor” enhancement supported by proof
of one other participant running an errand for defendant who
“set up the final transaction but did not handle the drugs
himself” and the inference that others also acted at his
direction). Though Hernandez may not have been present
for every major sea change in gang leadership and strategy,
he meets the criteria necessary for the enhancement and we
reject his request to conclude otherwise.
4
Leonidas individually challenges his sentence on the
basis that the district court failed to resolve one of his
objections to the PSR, under Federal Rule of Criminal
Procedure 32(i)(3)(B) (“Rule 32”). Rule 32 requires that the
court, at sentencing, “must—for any disputed portion of the
presentence report or other controverted matter—rule on the
dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
UNITED STATES V. PEREZ 53
court will not consider the matter in sentencing.” But only
“factual objections” to the presentence report are considered
“disputed” for purposes of Rule 32. See United States v.
Petri, 731 F.3d 833, 840 (9th Cir. 2013). Sentencing
adjustments “ordinarily do[] not require specific fact-
finding,” unless a defendant contests “specific factual
statements made in the PSR.” United States v. Carter,
219 F.3d 863, 866 (9th Cir. 2000). This issue was not raised
in the court below and is therefore reviewed for plain error.
United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir.
2013).
We reject Leonidas’s Rule 32 argument because he
failed to contest any factual statements made in the PSR.
Though the sentencing memorandum filed by his counsel
included the assertion that Leonidas should receive a two-
level reduction for his minor role in the enterprise, it did not
contradict any of the facts in the PSR. Leonidas’s
memorandum simply marshaled additional facts from trial in
support of his argument that the district court should apply
the reduction. This kind of challenge does not trigger Rule
32, and the court was not otherwise obligated to make
specific findings of fact to justify its decision not to apply
the reduction. See Petri, 731 F.3d at 841 (rejecting request
for minor-role reduction where objection was raised but
defendant “did not allege a factual inaccuracy in the
presentence report”); Christensen, 732 F.3d at 1102
(“Because [the defendant] never made specific factual
objections to the PSR regarding victim impact and loss
amounts, Rule 32 was never triggered.”). No Rule 32
violation was committed.
5
Hernandez and Leonidas jointly argue that the district
court’s explanation of how its sentencing determinations
54 UNITED STATES V. PEREZ
square with § 3553(a) was lacking because the court did not
address each of their objections to judicial findings or
provide “reasons specific to each appellant.” “[A]
sentencing judge does not abuse his discretion when he
listens to the defendant’s arguments and then ‘simply [finds
the] circumstances insufficient to warrant a sentence lower
than the Guidelines range.’” United States v. Amezcua-
Vasquez, 567 F.3d 1050, 1053–54 (9th Cir. 2009) (second
alteration in original) (quoting Carty, 520 F.3d at 995).
Because the Appellants did not object to the district court’s
§ 3553(a) findings below, we review the determination
under the even more deferential plain-error standard. See
Valencia-Barragan, 608 F.3d at 1108.
After calculating the base offense level, listening to
arguments—first about the Guidelines calculation, then
about the § 3553(a) factors—from both sides, and directly
citing to multiple aspects of the record supporting his
§ 3553(a) determinations, the district judge gave a within-
Guidelines sentence to both Appellants. The court recited
some of the same concerns at both Hernandez’s and
Leonidas’s sentencing hearings but provided individualized
facts that supported its determination as to each. We find no
error in proceeding in this manner, let alone one that was
plain.
6
Hernandez and Leonidas argue that the Sixth
Amendment and the Fifth Amendment’s Due Process Clause
prohibited the district court from relying only on judicial
findings of fact to justify giving them both life sentences.
Appellants specifically point to the fact that if the court had
adopted the drug amounts found by the jury, they should
have been given 150-month sentences, at most. Because
UNITED STATES V. PEREZ 55
these arguments were first raised on appeal, we review for
plain error. See Treadwell, 593 F.3d at 1016.
Appellants’ joint brief ignores the fact that the jury found
them responsible for possession of 280 grams or more of a
mixture that contains cocaine base under 21 U.S.C.
§ 841(b)(1)(A)(iii), which allows for a maximum penalty of
life imprisonment. This Court has repeatedly stated that the
Fifth and Sixth Amendments do not limit a judge’s
discretion to find facts at sentencing, as long as the resulting
sentence does not exceed the statutory maximum based on
the facts found by the jury. See Treadwell, 593 F.3d at 1017;
United States v. Raygosa-Esparza, 566 F.3d 852, 855 (9th
Cir. 2009) (rejecting Fifth and Sixth Amendment challenges
because “[t]he revised sentence imposed by the district court
for each offense does not exceed th[e] statutory maximum.
Accordingly, no constitutional violation occurred, even if
the district court did rely on facts not found by the jury.”).
Appellants cite Apprendi v. New Jersey, 530 U.S. 466
(2000), but neither that case nor its progeny guard against
sentences within the prescribed statutory maximum based on
facts found by the jury. Id. at 490 (jury must decide facts
increasing statutory maximum penalty); United States v.
Booker, 543 U.S. 220, 233 (2005) (increasing judicial
discretion in sentencing by making the Sentencing
Guidelines advisory to avoid Sixth Amendment problems);
United States v. Fitch, 659 F.3d 788, 795–96 (9th Cir. 2011)
(citing these standards as supporting the conclusion that the
“sentencing judge has the power to sentence a defendant
based upon facts not found by a jury up to the statutory
maximum”). As such, Appellants’ constitutional argument
is without merit.
56 UNITED STATES V. PEREZ
B
The substantive-unreasonableness claims raised by
Hernandez and Leonidas also fail. Though Appellants are
correct that the district court considered the Barajas murder
during sentencing, finding both Appellants responsible
under the preponderance of the evidence standard, the court
explicitly declined to consider that crime in its offense level
calculation. Instead, the court determined Appellants’
offense level using evidence of their drug trafficking
activities and reserved the Barajas murder for consideration
among other § 3553(a) aggravating factors. For Hernandez,
this included: his leadership role, his substantial
engagement in drug-dealing and gangbanging, his
promotion of violence, and his use of intimidation tactics.
For Leonidas, the court cited: his participation in shooting
missions, general gangbanging in rival territory, violent
threats, and his allegiance to the gang all the way up through
trial. Community protection was another important
consideration cited by the trial judge at both sentencing
hearings. Appellants’ sentences were within the Guidelines
range calculated by the court (life for Hernandez and
360 months to life for Leonidas), and the § 3553(a)
testimony cited justifies a sentence on the higher end of the
range for Leonidas. See Carty, 520 F.3d at 993–94. The life
sentences imposed for Hernandez and Leonidas were not
substantively unreasonable.
IV
Hernandez’s, Leonidas’s, and Vladimir’s convictions are
affirmed. Perez’s convictions on Counts One, Sixteen,
Seventeen, and Twenty are affirmed, but his conviction on
Count Eighteen is vacated and remanded. The government
may choose to retry Perez on that count or the district court
may resentence him without it if no retrial is conducted.
UNITED STATES V. PEREZ 57
Though the district court improperly applied the firearm
enhancement to Hernandez, the error was harmless, and all
of Hernandez’s and Leonidas’s other sentencing-related
challenges fail. We hold that there was no error in the district
court’s decision to give both Hernandez and Leonidas life
sentences. Because the district court accounted for Perez’s
Count Eighteen conviction in sentencing him, we remand for
resentencing if the government elects not to retry him on that
charge.
AFFIRMED in part, REVERSED and VACATED in
part, and REMANDED with instructions.