United States v. Jesus Ramirez ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50360
Plaintiff-Appellee, D.C. No.
3:18-cr-04217-LAB-1
v.
JESUS ALFREDO RAMIREZ, AKA Chuy, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted August 5, 2021
Pasadena, California
Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges.
Following a jury trial, Jesus Ramirez was convicted of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841 and 846; he received a below-
Guidelines sentence of twenty years. We affirm the conviction and sentence.
1. Ramirez argues that the district court erred both procedurally and
substantively in finding that the affidavit offered by the government in support of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
wiretap warrant1 contained “a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably appear
to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(1)(c),
and in finding that “normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” id.§ 2518(3)(c). Because we must independently consider the affidavit’s sufficiency
even if procedural error occurred, we assume procedural error arguendo and proceed
to the substantive issues. See United States v. Rodriguez, 851 F.3d 931, 938 (9th
Cir. 2017).
Our de novo review of the affidavit confirms that it complies with
§ 2518(1)(c). The affidavit first describes the probable cause for believing the target
of the proposed wiretap, Gonzalez, participated in the conspiracy, and offers a
detailed accounting of the investigative methods pursued to date. See United States
v. Christie, 825 F.3d 1048, 1066–68 (9th Cir. 2016). It then details the “inadequacy
of normal investigative techniques” on a category-by-category basis, giving
numerous reasons specific to Gonzalez and his putative co-conspirators. See id. at
1068–69. To be sure, the affidavit contains some boilerplate conclusions, but “as a
whole [it] speaks in case-specific language.” See United States v. Garcia-Villalba,
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Ramirez can only contest the validity of the August 13, 2018, wiretap
application. See United States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012); United
States v. Kahre, 737 F.3d 554, 565 (9th Cir. 2013) (per curiam).
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585 F.3d 1223, 1230 (9th Cir. 2009); see also Rodriguez, 851 F.3d at 942.
Nor did the district court abuse its discretion in concluding that § 2518(3)(c)
was satisfied because the wiretap was essential to the investigation. See Rodriguez,
851 F.3d at 938. The government was investigating what it believed to be a far-
reaching methamphetamine distribution conspiracy with links to local gangs and
foreign sources. See United States v. Reed, 575 F.3d 900, 909 (9th Cir. 2009) (“The
issuing court has considerable discretion in finding necessity, particularly when the
case involves the investigation of a conspiracy.”). It sought the wiretap only after
employing numerous alternative techniques over several months. See United States
v. McGuire, 307 F.3d 1192, 1196–97 (9th Cir. 2002) (“[L]aw enforcement officials
need not exhaust every conceivable alternative before obtaining a wiretap.”). And
it explained, in case-specific terms, why those techniques had not produced
information needed to “develop an effective case against those involved in the
conspiracy.” See Reed, 575 F.3d at 909 (cleaned up).
2. The district court did not plainly err by not sua sponte giving a specific
unanimity instruction because the evidence did not clearly establish more than “one
overall agreement to perform various functions to achieve the objectives of the
conspiracy.” United States v. Arbelaez, 719 F.2d 1453, 1457 (9th Cir. 1983)
(cleaned up). Ramirez imported product from Tijuana at $1,550 per pound, fronted
it to Esho at $1,600 to $1,700 per pound, and was paid after resale. Ramirez had
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“reason to know[] that other retailers” were involved in the conspiracy. Id. at 1458(cleaned up). Although Esho’s arrest ended his role in the conspiracy, Gonzalez
“kept it going” by stepping into Esho’s shoes. See United States v. Patterson, 819
F.2d 1495, 1502 (9th Cir. 1987).
3. The district court did not plainly err by not sua sponte addressing the
prosecutor’s questions to the venire because the questions were not obviously
problematic. United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015) (standard
of review for plain error). Rather, they appeared targeted “to ferret out prejudices in
the venire and to remove partial jurors.” United States v. Steele, 298 F.3d 906, 912
(9th Cir. 2002) (cleaned up). Asking one venireperson, a Child Protective Services
worker, whether he would have a “gut reaction” or “strong reaction” to Ramirez
using his child in his drug dealing touched on something that would be the subject
of evidence. And hypothetically asking whether the venire would hold it against the
government for “wasting [its] time” if it found the evidence “overwhelming” is
neither on its face an inappropriate endorsement of the government’s case, compare
United States v. Ruiz, 710 F.3d 1077, 1085–86 (9th Cir. 2013), nor clearly intended
to bias the jury against Ramirez.
4. In imposing an aggravated role enhancement, the district court did not
misinterpret Guideline 3B1.1(b). The court’s comments in imposing the
enhancement largely targeted the relevant lodestar, Ramirez’s “relative
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responsibility.” United States v. Egge, 223 F.3d 1128, 1133 (9th Cir. 2000);
U.S.S.G. § 3B1.1(b) cmt. background. Nor did the court abuse its discretion in
applying the Guideline. As the importer and supplier of methamphetamine, Ramirez
bore more “relative responsibility” than the individual dealers who simply came to
him for product. See Egge, 223 F.3d at 1133. And the evidence supported the
requisite finding that Ramirez “supervised or exercised some degree of control over
at least one participant in an extensive criminal scheme.” See United States v.
Herrera, 974 F.3d 1040, 1046 (9th Cir. 2020); see also, e.g., United States v. Garcia,
497 F.3d 964, 970 (9th Cir. 2007) (applying enhancement where defendant exercised
control over another by fronting her drugs “while threatening to harm her if she did
not repay him”); United States v. Franco, 136 F.3d 622, 631 (9th Cir. 1998)
(applying enhancement where defendant asked participant to run an errand for him
and to set up a drug transaction).
AFFIRMED.
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