United States v. Yepiz

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 07-50051
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-7
v.
MEMORANDUM*
MANUEL YEPIZ, aka’s Martin Sanchez;
et al.,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-50062
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-37
v.
JOSE LUIS MEJIA, a/k/ Jose Luiz Mejia,
Jose Nernedes, Juan Martinez, Jose Mejia,
Check Mejia, Jose Al Mejia, Joe Morin,
Jose L. Mejia, “Checho”, “Joe” and
“Cheech”,
Defendant - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
UNITED STATES OF AMERICA, No. 07-50063
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-35
v.
FRANCISCO ZAMBRANO, a/k/a Franky
Boy and “Franky”,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-50067
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-21
v.
JESUS CONTRERAS, aka Jessie
Contreras; et al.,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-50070
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-44
v.
MARIANO MEZA,
Defendant - Appellant.
2
UNITED STATES OF AMERICA, No. 07-50098
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-36
v.
SERGIO MEJIA, aka Robert Mesa; et al.,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-50133
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-22
v.
GILBERTO CARRASCO, a/k/a
GILBERTO CARRASCO, JR.; et al.,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-50142
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-31
v.
ERNESTO OROZCO MENDEZ, a/k/a
“GORDO”, “EL GORDO”, ERNESTO
MIJARES, ERNESTO MENDOZA
MIJARES, ERNESTO MENDOZA
OROZCO (Birth Name),
Defendant - Appellant.
3
UNITED STATES OF AMERICA, No. 07-50264
Plaintiff - Appellee, D.C. No. CR-05-00578-JFW-1
v.
RAFAEL YEPIZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted December 7, 2015
Pasadena, California
Before: REINHARDT, NOONAN, and NGUYEN, Circuit Judges.
Appellants—Manuel Yepiz, Jose Luis Mejia, Francisco Zambrano, Jesus
Contreras, Mariano Meza, Sergio Mejia, Gilberto Carrasco, Rafael Yepiz, and
Ernesto Mendez—are all alleged members of the Vineland Boys gang (“VBS”) and
timely appealed their convictions and sentences. The court has concurrently filed
an opinion addressing appellants’ joint Brady claims and Manuel Yepiz’s Sixth
Amendment Right to Counsel claim. This memorandum disposition addresses the
remaining issues before the court.
4
I. VOIR DIRE
During voir dire, juror sidebars were held in a jury room adjacent to the
courtroom with counsel and a court reporter. The district court found that it was
impossible to move the defendants to the jury room without the prospective jurors
noticing their shackles, and therefore ordered that they remain seated in the
courtroom at all times. The district court also found that it was equally infeasible to
clear the courtroom each time a prospective juror needed to be questioned
privately. Defense counsel were permitted to leave at any point to confer with their
clients, but the defendants were not permitted in the jury room. General voir dire
questions of a non-sensitive nature were conducted in open court. However, issues
relating to bias or prejudice, and some hardship questions were discussed in the
jury room. The court interviewed 94 potential jurors, 77of whom were, at some
point, questioned in the jury room. Thirty jurors were questioned only as to
hardship or publicity, and 47 were questioned as to other topics—primarily bias or
prejudice. Appellants contend that this procedure violated (1) their right to be
present at trial, and (2) their right to a public trial. “Although we review the district
court’s conduct of voir dire for abuse of discretion, questions of law that arise
during the course of voir dire are reviewed de novo.” United States v. Reyes, 764
F.3d 1184, 1188 (9th Cir. 2014) (internal citations omitted).
5
The voir dire procedures fashioned by the district court did not violate
defendants’ constitutional right to presence, which must at times yield to the
“day-to-day realities of courtroom life,” as well as “society’s interest in the
administration of criminal justice.” Rushen v. Spain, 464 U.S. 114, 119 (1983). In
this case, the district court provided defendants as much ability to observe
prospective jurors and participate in the voir dire process as possible in light of the
countervailing considerations of security, juror privacy, and courtroom logistics.
We therefore cannot say that “a fair and just hearing [was] thwarted by”
defendants’ absence from certain portions of voir dire. Snyder v. Com. of Mass.,
291 U.S. 97, 107–08 (1934); cf. Rice v. Wood, 77 F.3d 1138, 1145 (9th Cir. 1996);
Reyes, 764 F.3d at 1190.
Assuming arguendo that the voir dire procedures violated defendants’
statutory right to be present under Federal Rule of Criminal Procedure 43, we hold
that the error was harmless because “there is no reasonable possibility that
prejudice resulted from the [defendant’s] absence.” United States v.
Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th Cir. 2002) (quoting United States v.
Kupau, 781 F.2d 740, 743 (9th Cir. 1986)); see also United States v. Bordallo, 857
F.2d 519, 523 (9th Cir. 1988).
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Defendants never argued that the voir dire procedures violated their right to
a public trial before the trial court. This claim is therefore forfeited on appeal.
Freytag v. C.I.R., 501 U.S. 868, 896 (1991); United States v. Cazares, 788 F.3d
956, 971 (9th Cir. 2015).
II. PRETRIAL PUBLICITY
At the close of trial, the district court denied defendants’ motion for a
mistrial based in part on juror exposure to pretrial publicity. The motion claimed
that an article published by the Daily News entitled “Vineland Boys About to Face
Judgement Days” violated defendants’ Sixth Amendment right to a trial by an
impartial jury. A trial court’s finding of impartiality may be overturned only for
manifest error. Mu’Min v. Virginia, 500 U.S. 415, 428 (1991).
“[P]retrial publicity, even pervasive, adverse publicity does not inevitably lead to
an unfair trial.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976). The
exposure to pretrial publicity in this case bears little resemblance to the extreme
cases that have given rise to a violation of the right to an impartial jury. Compare
Skilling v. United States, 561 U.S. 358 (2010), with Irvin v. Dowd, 366 U.S. 717,
723 (1961). Accordingly, we find that the publicity in this case does not implicate
the Sixth Amendment.
III. BATSON
7
During voir dire on August 22, 2006, the government exercised a
peremptory challenge against Juror number 6, a Hispanic male. Defendants
objected, arguing that the government exercised its peremptory on the basis of the
juror’s race. The district conducted a Batson analysis and concluded that the
government’s reasons constituted a credible, race-neutral basis for striking Juror 6,
and accordingly overruled the objection. Defendants now contend that the district
court erred. “On appeal, a trial court's ruling on the issue of discriminatory intent
must be sustained unless it is clearly erroneous.” Snyder v. Louisiana, 552 U.S.
472, 477 (2008).
Defendants argue that the district court’s failure to engage in a comparative
analysis on the record amounts to procedural error that is per se reversible. See
generally Ali v. Hickman, 584 F.3d 1174, 1184 (9th Cir. 2009). However, this
court has recently rejected this precise argument. Murray v. Schriro 745 F.3d 984,
1005 (9th Cir. 2014).
Defendants further argue that in rejecting their Batson objection to Juror 6,
the district court improperly considered the fact that defendants would have the
opportunity to have other Hispanic individuals on the jury because three of the next
nine potential jurors to be questioned were Hispanic. As an initial matter,
defendants cite no case supporting the proposition that this would constitute
8
reversible error. Moreover, it was defense counsel—not the trial court—that
initially commented on the ethnicity of the potential jurors to be questioned. Read
in context, the district court’s remarks were merely a response to counsel’s
comment and played no part in its Batson analysis.
IV. ANONYMOUS JURY
Contreras and Mendez contend that the district court empaneled an
anonymous jury without providing the proper safeguards to protect their
constitutional rights to a fundamentally fair trial and their presumption of
innocence. Because neither Contreras’s nor Mendez’s attorneys objected to the
empaneling of an anonymous jury below, we review for plain error. See United
States v. Marcus, 560 U.S. 258 (2010).
While this circuit has never explicitly stated which factors make a jury
anonymous, the Seventh Circuit has held that empaneling an anonymous jury
“requires withholding, at least, the jurors’ names from the parties.” United States
v. Harris, 763 F.3d 881 (7th Cir. 2014). In Harris, the court found that a jury was
not anonymous where (1) the district court did not tell the jury their names were
being withheld from the parties; (2) the court explicitly named one juror on the
record; and (3) the jury appeared comfortable revealing personal information about
themselves during voir dire.
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Here, (1) the jurors were addressed by name throughout the first day of voir
dire, with the judge only beginning to refer to them by number on the second day;
(2) the district court provided counsel with a list containing the name, badge
number, and city of residence of each prospective juror, providing them with
sufficient information to conduct voir dire; (3) the judge referred to a juror by
name after implementing the number-only system; and (4) prospective jurors felt
comfortable revealing identifying information such as their employers, job
descriptions, and neighborhoods in open court. We therefore find that the jury in
this case was not anonymous, and defendants’ claims fail.
V. JUROR MISCONDUCT
On November 30, 2006—after the jury had reached a verdict, but before all
defendants had been sentenced—defendants R. Yepiz and Contreras moved for a
new trial on the basis of juror misconduct, attaching declarations purporting to
show that jurors saw VBS graffiti on their train ride to the courthouse. The district
court took all admissible portions of the declaration as true for purposes of ruling
on the motion for a new trial and denied it. We review the district court’s denial of
a motion for a new trial based on juror misconduct for abuse of discretion. United
States v. Murphy, 483 F.3d 639, 642 (9th Cir. 2007). We affirm the district court’s
ruling because the alleged extrinsic evidence was entirely cumulative of evidence
10
presented at trial, and evidence of VBS graffiti played a minor part in the
government’s case.
VI. GRIFFIN ERROR
Defendants contend that a portion of the government’s remarks during
rebuttal impermissibly drew attention to defendants’ failure to testify, in violation
of Griffin v. California, 380 U.S. 609 (1965). Both parties agree that this Court
must review this claim for plain error in light of defendants’ failure to object at
trial. See United States v. Kennedy, 714 F.2d 968, 976–77 (9th Cir. 1983). Read in
context, the prosecutor’s comments were directed at defense counsel, not
defendants, and therefore did not violate Griffin. See United States v. Rodriguez-
Preciado, 399 F.3d 1118, 1132 (9th Cir. 2005).
VII. PROSECUTORIAL MISCONDUCT
Defendants contend that the government engaged in prosecutorial
misconduct when it told the jurors that it was their job to convict defendants.
Defendants failed to raise an objection to the government’s comments at trial;
accordingly, we review for plain error. United States v. Henderson, 241 F.3d 638,
652 (9th Cir. 2000). Read in context, the government was “arguing that, if the jury
finds that the prosecution has met its burden of proving the elements beyond a
reasonable doubt, then it is the jury’s duty to convict. Understood in that way, the
11
prosecutor’s statement is clearly proper.” United States v. Gomez, 725 F.3d 1121,
1131 (9th Cir. 2013) (emphasis in original). This district court did not plainly err.
VIII. ADMISSION OF EVIDENCE
Defendants contend that the district court erred by admitting certain
evidence under Federal Rule of Evidence 403, and by reading a summary of the
indictment. A district court’s rulings pursuant to Rule 403 is given “considerable
deference,” United States v. Cordoba, 194 F.3d 1053, 1063 (9th Cir. 1999), and is
reversed for abuse of discretion only if such “nonconstitutional error more likely
than not affected the verdict.” United States v. Hankey, 203 F.3d 1160, 1167 (9th
Cir. 2000). Among the litany of evidentiary objections advanced by defendants,
many were never raised below and should therefore be reviewed for plain error.
However, we need not engage in a plain error analysis because defendants have
failed to show that the district court abused its discretion as to any of the contested
evidence. See Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004); United States
v. Matera, 489 F.3d 115,121 (2d Cir. 2007); United States v. Fernandez, 388 F.3d
1214, 1224 (9th Cir. 2004); United States v. Rodriguez, 766 F.3d 970, 986–87 (9th
Cir. 2014); United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008); Hankey,
203 F.3d at 1173. Furthermore, the district court did not err by reading a summary
of the indictment. United States v. Polizzi, 500 F.2d 856, 876 (9th Cir. 1974).
12
IX. SEALED DOCUMENTS
Defendants argue that the district court’s orders sealing numerous
documents violated their right to a public trial under the Sixth Amendment. This
claim was never raised below and we therefore review for plain error.
Defendants have failed to cite even a single case holding that the sealing of
documents violated a defendant’s Sixth Amendment right to a public trial.
Defendants’ failure show that the error was “clear on its face under current law” is
fatal under plain error review. United States v. Campos, 217 F.3d 707, 712 (9th
Cir. 2000). Moreover, we have previously rejected claims that seek to
constitutionalize mere disagreement with a district court’s sealing orders. See
United States v. Graf, 610 F.3d 1148, 1168 (9th Cir. 2010) (citing United States v.
Shryock, 342 F.3d 948, 983 (9th Cir. 2003)).
X. R. YEPIZ’S REQUESTS FOR SUBSTITUTION OF COUNSEL
R. Yepiz argues that the district court violated his Sixth Amendment right to
counsel by denying his pre-trial requests for substitution of counsel and a
continuance of the trial, that the denials constitute structural error, and that he is
therefore entitled to reversal of his conviction. We review denials of motions for
substitution and continuance for abuse of discretion. United States v. Rivera-
Corona, 618 F.3d 976, 978 (9th Cir. 2010); United States v. Nguyen, 262 F.3d 998,
13
1002 (9th Cir. 2001).
District courts are granted “wide latitude” in balancing a defendant’s right to
counsel of choice with the need for fairness and the demands of their calendars.
United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). Thus, when a
defendant seeks to substitute counsel, the defendant may generally do so “for any
reason or no reason” so long as “the substitution would [not] cause significant
delay or inefficiency or run afoul of . . . other considerations,” such as the “fair,
efficient and orderly administration of justice.” Miller v. Blacketter, 525 F.3d 890,
896 (9th Cir. 2008); see also Rivera-Corona, 618 F.3d at 979–80, 1115. “Broad
discretion” must also “be granted [to] trial courts on matters of continuances.”
Morris v. Slappy, 461 U.S. 1, 11–12 (1983).
We find that the district court did not abuse its discretion when it denied R.
Yepiz’s eve-of-trial requests for substitution of counsel and a continuance, given
that granting the requests would have substantially burdened the court. Gonzalez-
Lopez, 548 U.S. at 152. The court quickly inquired into R. Yepiz’s requests for
substitution, and stated that it would not object to a substitution so long as R.
Yepiz’s new attorney would be prepared to move forward with trial on August 8,
2006. The court only denied R. Yepiz’s requests after learning that his new
attorney would not be ready to proceed by that date and would instead require a
14
continuance. The court then reasonably determined that a continuance would
substantially burden its proceedings after considering, among other concerns, (1)
the numerous other parties joined in the suit, (2) that the trial date had been set for
more than a year; (3) numerous other cases had been continued to make room for
this trial, which was expected to last three months; and (4) more than 11,000 jury
summonses had already been sent out. The district court’s decision to deny R.
Yepiz’s requests was thus well within its “wide latitude.”
XI. R. YEPIZ’S MOTION TO SUPPRESS WIRETAP EVIDENCE
R. Yepiz argues that the district court erred in denying his motion to
suppress evidence obtained through wiretaps based on an alleged lack of necessity,
18 U.S.C. §§ 2518(1)(c), and by denying his requests for a Franks hearing and in
camera ex parte review. A district court’s decision to deny a Franks hearing is
reviewed de novo, while underlying factual findings relating to materiality are
reviewed for clear error. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.
1985). We review the issuing court’s finding of necessity for abuse of discretion.
United States v. McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002). We review a
district court’s denial of a motion for an in camera ex parte hearing to examine a
confidential informant for abuse of discretion. United States v. Vorasane, 583 F.
15App’x 709, 710-11 (9th Cir. 2014) (unpublished) (citing United States v. Napier,
436 F.3d 1133, 1136 (9th Cir. 2006)).
R. Yepiz was not entitled to a Franks hearing because he failed to “make a
substantial preliminary showing that the affidavit contain[ed] intentionally or
recklessly false statements, and . . . [that] the affidavit purged of its falsities would
not be sufficient to support a finding of probable cause.” United States v. Meling,
47 F.3d 1546, 1553 (9th Cir. 1995) (internal quotations omitted). The district court
did not abuse its discretion in finding necessity. See United States v. Spagnuolo,
549 F.2d 705, 710 (9th Cir. 1977); United States v. Bennett, 219 F.3d 1117, 1122
(9th Cir. 2000) (quoting United States v. Torres, 908 F.2d 1417, 1422 (9th Cir.
1990)). Finally, the district court did not abuse its discretion in denying R. Yepiz’s
request for ex parte in camera review because R. Yepiz failed to overcome the
presumption of validity and there was sufficient evidence to establish probable
cause even absent evidence gathered from the confidential informant. See Roviaro
v. United States, 353 U.S. 53, 61 (1957); United States v. Kiser, 716 F.2d 1268,
1273 (9th Cir. 1983).
XII. CHALLENGES TO SUFFICIENCY OF EVIDENCE
Various defendants challenge the sufficiency of the evidence supporting
their convictions. In addressing their arguments, the court must construe the
16
evidence “‘in the light most favorable to the prosecution,’ and only then determine
whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1161
(9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))
(emphasis in original). Therefore, we reverse only when “all rational fact finders
would have to conclude that the evidence of guilt” was insufficient. Nevils, 598
F.3d at 1165. This Court reviews the district court’s denial of defendants’ motions
for acquittal de novo. United States v. Carranza, 289 F.3d 634, 641 (9th Cir.
2002).
The government introduced evidence that VBS exhibited hierarchy, role
differentiation, a chain of command, membership dues, rules and regulations,
internal disciplinary mechanisms, and an enterprise name. This is sufficient to
show that VBS is an association-in-fact enterprise. 18 U.S.C.§ 1961(4); see Boyle
v. United States, 556 U.S. 938, 948 (2009); United States v. Fernandez, 388 F.3d
1199, 1224 (9th Cir. 2004).
The government introduced sufficient evidence to show that the nineteen
charged racketeering acts were sufficiently related to constitute “a pattern of
racketeering activity.” 18 U.S.C. § 1961(5); H.J. Inc. v. N.W. Bell Tel. Co., 492
17
U.S. 229, 239 (1989); Sun Savs. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 194 (9th
Cir. 1987).
i. Carrasco
Carrasco challenges the sufficiency of the evidence supporting his
substantive RICO conviction (Count 1), and his convictions for RICO and drug
conspiracy (Counts 2 and 3, respectively). The government introduced evidence
showing that Carrasco was a bona fide member of VBS, had VBS-related tattoos
inscribed across his stomach and behind his ears, and owned a car sporting a VBS-
related license plate. Carrasco was also actively involved in drug-dealing with
other VBS members, and engaged in gang-banging activities with them. Most
notably, he and other gang members helped a wounded VBS member—David
Garcia—escape apprehension after a shootout during which he murdered a police
officer. Taken together, these facts support the conclusion that Carrasco played at
least “some part in directing” VBS affairs. Reves v. Ernst & Young, 507 U.S. 170,
179 (1993). This evidence is also sufficient to show continuous and sustained
involvement in a range of VBS-related activities from which a reasonable jury
could draw the conclusion that Carrasco’s understanding with fellow VBS
members “was of sufficient scope to warrant the conclusion that he embraced the
18
common purpose of the conspiracy.” United States v. Bibbero, 749 F.2d 581, 587
(9th Cir. 1984).
Finally, Carrasco challenges the sufficiency of his conviction for accessory
after the fact (Count 63). Carrasco challenges only the third element of the offense:
that he assisted Garcia in “avoiding apprehension, trial or punishment.” United
States v. Felix-Gutierrez, 940 F.2d 1200, 1206 (9th Cir. 1991); see also 18 U.S.C.
§ 3. Carrasco’s argument can be reduced to the contention that he was merely
along for the ride, and did not actively intend to assist Garcia. However, this
argument fails to meet the high bar of showing that no reasonable jury could have
inferred from the evidence that he was an active participant in helping Garcia
abscond.
ii. S. Mejia
S. Mejia challenges his drug conspiracy convictions (Count 3). The
government introduced evidence that S. Mejia communicated to Joe Rangel that he
was going to start converting cocaine to cocaine base in the same manner as his
brother, J. Mejia, and asked Rangel for cocaine to convert. Pay-owe sheets showed
that Rangel and S. Mejia trafficked large quantities of cocaine. The government
showed that on November 5, 2004, Rangel gave S. Mejia half a kilogram of
cocaine. The government also introduced evidence that other VBS members were
19
aware of S. Mejia’s drug trafficking activities. This evidence is sufficient to
support S. Mejia’s drug conspiracy convictions. United States v. Mesa-Farias, 53
F.3d 258, 260 (9th Cir. 1995).
S. Mejia also challenges the jury’s quantity findings. A defendant may be
held liable for the drugs he personally possessed, in addition to “the quantity of
drugs that either (1) fell within the scope of the defendant’s agreement with his
coconspirators or (2) was reasonably foreseeable to the defendant.” United States
v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003). Therefore sufficient evidence
supported these findings.
iii. Mendez
Mendez argues that there is insufficient evidence to support his substantive
RICO conviction (Count 1) because he was not a member of VBS, and never
agreed to participate nor played any part in the criminal enterprise. As an initial
matter, Mendez’s status as a non-member is of no moment. “Associated outsiders
who participate in a racketeering enterprise’s affairs fall within RICO’s strictures.”
United States v. Tille, 729 F.2d 615, 620 (9th Cir. 1984). Moreover, accepting
Mendez’s argument requires drawing many inferences from the evidence in his
favor, which is manifestly improper under Nevils, 598 F.3d 1158 (9th Cir. 2010)
(en banc).
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iv. R. Yepiz
R. Yepiz also challenges the jury’s quantity findings. However, the
evidence showed that R. Yepiz entered into many multi-pound methamphetamine
and cocaine deals with various members of the conspiracy. Evidence also
supported the jury’s five kilogram of cocaine finding.
XIII. CHALLENGES TO SENTENCES
Various defendants also challenge their sentences. When reviewing
sentences, the appellate court should consider whether (1) the district court
committed a procedural error, and (2) the sentence was substantively reasonable.
Gall v. United States, 552 U.S. 38, 51 (2007).
Procedural error occurs where the district court incorrectly calculates the
Guidelines range, treats the Guidelines as mandatory, fails to consider the 18
U.S.C. § 3553(a) factors, selects a sentence based on clearly erroneous facts, or
fails to adequately explain the chosen sentence. Id. Procedural error is not a
ground for re-sentencing where the error was harmless. United States v. Ali, 620
F.3d 1062, 1074 (9th Cir. 2010). While sentencing decisions are generally
reviewed for abuse of discretion, where a defendant failed to object on the grounds
of procedural error below, this court reviews for plain error. United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010).
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Where the district court’s decision is procedurally sound, this court reviews
the substantive reasonableness of the decision for abuse of discretion in light of the
totality of the circumstances. Gall, 522 U.S. at 51. If the petitioner’s sentence falls
within the Guidelines range, the appellate court “may, but is not required to, apply
a presumption of reasonableness.” Id. However, where the sentencing decision is
outside the Guidelines range, the court may not apply a presumption of
unreasonableness. Id. We must also give “due deference” to the district court’s
decision that the § 3553(a) factors justify a variance from the Guidelines. Id.
Thus, an abuse of discretion occurs only where the district court has applied the
Guidelines in a way that is “illogical, implausible, or without support in inferences
that may be drawn from facts in the record.” United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009).
i. Carrasco
Carrasco challenges his sentence on several grounds. First, he argues that
§§ 11350(a) and 11351 of the California Health and Safety Code are not divisible
following Descamps v. United States, 133 S. Ct 2276, 2285–86 (2013). We find
that because § 11351 criminalizes the possession for sale of “any” of a number of
controlled substances that the statute identifies by reference, the statute “effectively
22
create[s] several different . . . crimes” that can be considered in the alternative.
Coronado v. Holder, 759 F.3d 977, 984 (9th Cir. 2014) (internal quotation marks
omitted). It is therefore divisible and subject to the modified categorical
approach. Because “the government only need[ed] to prove one of the prior
convictions to get the enhanced penalty in this case,” Carrasco’s § 11351
conviction alone was sufficient to support his sentence, and we need not consider
whether §§ 11350(a) is also divisible.
Second, Carrasco argues that the district court committed procedural error
by improperly calculating his Guidelines range. Because Carrasco failed to offer
any support for this allegation and made no attempt to prove that his argument
satisfies the elements of plain error, it fails.
Third, Carrasco argues that his offense level for Count 63 should have been
20 rather than 30 because his conduct was “limited to harboring a fugitive.”
Where a defendant’s actions are limited in such a way, the Guidelines restrict the
court from imposing an offense level higher than 20. See U.S.S.G. §
2X3.1(a)(3)(A)(B) and (C). However, the district court found that Carrasco’s
actions exceeded merely harboring a fugitive when he (1) picked up and dropped
of David Garcia after he murdered Officer Pavelka so that he could make his way
to Mexico; (2) toasted Officer Pavelka’s death; and (3) was tasked with
23
investigating police officers’ actions at the crime scene that evening, which the
court determined was “important” in ensuring Garcia escaped apprehension. The
court therefore did not abuse its discretion in refusing to cap his offense level at 20.
Fourth, Carrasco argues that the district court erred by rejecting his request
for a minor role reduction and “substantially overstat[ing] the seriousness of his
past convictions.” In order to qualify for a minor role reduction, Carrasco must
have “demonstrate[d] . . . that he was a minimal or minor participant in the
criminal activity,” to the extent that he was “substantially less culpable” than his
co-participants. United States v. Rosas, 615 F.3d 1058, 1067 (9th Cir. 2010);
United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006).
Carrasco’s presentence report, which was adopted by the court, found that
while his role in VBS’s drug trafficking was “limited to receiving and distributing
drugs . . . Carrasco was an average participant in the conspiracy,” who “played a
mutually supportive role,” and was therefore “seen as equal in culpability to the
other drug trafficking defendants.” The evidence supports such a view, since
Carrasco was convicted of possession with the intent to distribute at least 500
grams of cocaine, less than 50 grams of methamphetamine, and less than 100
kilograms of marijuana. In addition, Criminal History departures under USSG §
4A1.3 are “entirely discretionary under the Guidelines,” and not subject to
24
procedural challenge. United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011). As
such, this court may only review them to determine a “sentence’s substantive
reasonableness,” which Carrasco also challenges. Id. We find that Carrasco’s
180-month sentence followed by eight years of supervised release was not
substantively unreasonable, however, because the court reasonably considered
Carrasco’s history and the § 3553(a) factors in reaching its decision. The court
therefore did not err in denying Carrasco’s minor role reduction request.
Finally, Carrasco challenges the terms of his supervised release conditions as
being impermissibly vague under 18 U.S.C. § 3583. The conditions stipulate that
Carrasco may not “associate with” any member of a “criminal street gang,” or
“disruptive group” and may not wear, display, use, or possess any item that
“connotes affiliation” with or membership in VBS. Precedent forecloses three of
Carrasco’s arguments, as this court has previously held that the terms “associate
with,” “criminal street gang,” and “may connote” are not unconstitutionally vague.
See e.g. United States v. Soltero, 510 F.3d 858 (9th Cir. 2007). However, as the
government concedes, this court has previously found the term “disruptive group”
to be impermissibly vague. See id. at 867. We must thus REMAND to the district
court so that it may excise the phrase from Condition 7 of Carrasco’s supervised
release conditions. Id.25
ii. Contreras
Contreras contends that his within-Guidelines 300-month sentence is
substantively unreasonable. Because his sentence falls within the Guidelines range,
we are entitled to apply a presumption of reasonableness. Gall, 522 U.S. at 51.
Contreras was convicted of Counts 1-3 of the indictment, based in part on
several recorded phone conversations between Contreras and other VBS members
with whom he repeatedly discussed exchanging large amounts of
methamphetamine and cocaine. Contreras’s assertion that the court “obviously
doubled” his sentence “simply because of his claimed membership in VBS, though
he clearly had no role in the organization and had nothing to do with the matters
with which he was charged in the indictment,” therefore ignores the evidence in the
record, the jury’s verdict, and the court’s findings. His sentence is not illogical,
implausible, or without support.
iii. J. Mejia
J. Mejia contends that the Guidelines “in effect at the time of [his]
sentencing were amended during the pendency of [his] appeal.” In addition, he
contends that due to an intervening change in California State Law 47, J. Mejia’s
prior narcotics conviction has been reduced from a felony to a misdemeanor. The
government concedes that the amendments make J. Mejia “potentially eligible for a
26
sentence reduction.” Its sole objection on appeal is that the correct way to request a
sentence adjustment is to “file a motion in the district court, in the first instance,
under 18 U.S.C. § 3582(c)(2),” so that the government would be “free to re-
advance its original position that J. Mejia conspired to distribute 18 kilograms of
cocaine.”
While J. Mejia argues that such an action would “penalize” him by affirming
a “now erroneous factual finding concerning his criminal history,” this court has
previously denied similar requests for resentencing without prejudice, so that
defendants may move for an adjustment of their sentence in the district court. See
United States v. Ogo, 298 F. App’x 664 (9th Cir. 2008). We therefore DENY J.
Mejia’s request without prejudice.
iv. S. Mejia
S. Mejia challenges the district court’s mandatory minimum life sentence on
the basis that the government failed to prove drug quantities. However, the district
court’s sentence was required under 21 U.S.C. §§ 841 (2006), given the jury’s
cocaine base and methamphetamine findings and Sergio’s prior felony drug
offenses.
v. Mendez
27
Mendez argues that his 210-month sentence is substantively unreasonable
because the district court denied him a minor role reduction under U.S.S.G.
§ 3B1.2, and is unreasonably high. In order to qualify for a mitigating role
reduction, a defendant must “demonstrate by a preponderance of the evidence that
he was a minimal or minor participant in the criminal activity,” and “substantially
less culpable” than his co-participants. United States v. Rosas, 615 F.3d 1058,
1067 (9th Cir. 2010); United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir.
2006).
The jury found Mendez guilty of Counts 1-3, 35, 36, and Racketeering Acts
1, 40(a), and 40(b), which included the distribution of large quantities of cocaine
and marijuana. Based on this evidence, it was not erroneous for the court to
conclude that Mendez “helped play an important role” in VBS’s drug trafficking
activities.”
Mendez’s sentence was also not unreasonably high. Based on the drug
quantities found by the jury, the district court appropriately applied an offense base
level of 36. The resulting Guidelines range, given a Criminal History Category of
III, was 235-293 months. The court considered the § 3553(a) factors, highlighting
that Mendez was a successful musician whose prior convictions were minor and
unrelated to drugs, and accordingly gave him a sentence below the Guidelines
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range. Id. at 60-61. Mendez’s sentence is not illogical, implausible, or without
support.
vi. Meza
Meza contends that his sentence violated his due process rights because the
district court relied on the allegedly erroneous fact that Meza was a member of
VBS. A defendant’s due process rights are violated during sentencing where a
court relies on “materially false or unreliable information.” United States v.
Columbus, 881 F.2d 785, 787 (9th Cir. 1989). To rebut his sentence, Meza needed
to show that his classification as a VBS member was (1) false or unreliable, and (2)
the basis for his sentence. Id. Meza can show neither.
First, ample evidence—including VBS graffiti in Meza’s rental home and
his extensive knowledge of VBS affairs—chronicled Meza’s involvement in the
VBS, making the conclusion that he is a VBS member neither false nor unreliable.
Second, the district court clearly stated that while it was sure Meza was a gang
member, it was “looking at Mr. Meza’s drug trafficking activities as the primary
force in the sentence” it chose to impose. Meza’s gang membership was therefore
not the basis for his sentence and his claim fails.
vii. M. Yepiz
29
M. Yepiz challenges his within-Guidelines 240-month sentence as
substantively unreasonable. However, we need not consider this argument because
we reversed his conviction in our concurrently filed opinion.
viii. R. Yepiz
R. Yepiz challenges his mandatory life sentence, arguing that his two prior
convictions under California Health and Safety Code § 11351 do not qualify as
“felony drug offenses” for purposes of 21 U.S.C. §§ 841 and 851. Because R.
Yepiz failed to raise this argument below, we review for plain error.
As discussed above in § XIII.i, we find that § 11351 is divisible and subject
to the modified categorical approach. The sentencing court therefore did not
plainly err when it used the modified categorical approach to determine “which
element [of § 11351] formed the predicate offense for [R. Yepiz’s] conviction.”
Coronado, 759 F.3d at 985.
The sentencing court also did not plainly err in determining that documents
submitted to the district court were sufficient to demonstrate that R. Yepiz’s 1993
conviction was a “felony drug offense.” The government submitted three
documents, including (1) a certified felony complaint in case BA066066 charging
R. Yepiz in Count 7 with “possess[ion] for sale and purchase for sale a controlled
substance, to wit, cocaine;” (2) certified minutes from case BA066066 showing
30
that R. Yepiz withdrew a plea of “not guilty” and pled nolo contendere to “a
violation of Section 11351 H&S in Count 07;” and (3) a certified Disposition of
Arrest and Court action form in case BA066066 that, although partly illegible,
shows R. Yepiz was charged under Count 7 with a violation of § 11351 and
sentenced to two years imprisonment. This circuit has previously held that
documents similar to those provided here were sufficient to establish a predicate
offense for purposes of the modified categorical approach. See e.g. United States
v. Strickland, 601 F.3d 963, 970 (9th Cir. 2010) (en banc). The submitted
documents were therefore sufficient to establish R. Yepiz’s predicate offense under
§ 11351 as possession of a narcotic or controlled substance for sale, which falls
squarely within the definition of “felony drug offense” under § 841. See 21 U.S.C.
§ 841.
ix. Zambrano
Zambrano raises a procedural challenge to his sentence, arguing that the
district court violated Federal Rule of Criminal Procedure 32(h) by failing to notify
him of its intent to “depart” from the Guidelines range in imposing a 480-month
sentence.
Rule 32(h) requires a district court to notify the parties before it may “depart
from the applicable sentencing range on a ground not identified for departure either
31
in the presentence report or in a party’s prehearing submission.” Fed. R. Crim. P.
32(h). However, as noted by the Supreme Court in Irizarry v. United States, 553
U.S. 708 (2008), Rule 32(h) applies only to “departures,” not “variances.” Id. at
714. A “departure” refers to a “change from the final sentencing range computed
by examining the provisions of the Guidelines themselves,” while a “variance”
refers to a sentence falling “above or below the properly calculated final sentencing
range based on the application of statutory factors enumerated in 18 U.S.C.
§ 3553(a).” United States v. Moschella, 727 F.3d 888, 893 (9th Cir. 2013).
Here, the district court determined Zambrano’s Guidelines range to be 235
to 293 months. After lengthy consideration of the § 3553(a) factors, the court
found that that range “fail[ed] to adequately capture . . . [Zambrano’s] criminal
conduct and history,” and chose to impose a sentence of 480 months. Throughout
the court’s discussion, it did not state that it wished to “depart” from the Guidelines
range, but instead that it wished to impose a higher sentence in light of the §
3553(a) factors. The court thus applied a variance rather than a departure and Rule
32(h) does not apply.
XIV. CUMULATIVE ERROR
“In some cases, although no single trial error examined in isolation is
sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors
32
may still prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381
(9th Cir. 1996). However, here, we have largely found that the district court did
not err. Furthermore, the cumulative effect of the instances where we have found
that error was either harmless or did not rise to the level of plain error do not
require reversal because “it is more probable than not that, taken together, they did
not materially affect the verdict.” United States v. Fernandez, 388 F.3d 1199, 1257
(9th Cir. 2004).
We conclude that all other issues are without merit.
XV. CONCLUSION
We REMAND to allow the district court to amend Carrasco’s conditions of
supervised release; we DENY J. Mejia’s request for a sentencing reduction without
prejudice to filing a motion in the district court; we AFFIRM as to all other issues
addressed in this memorandum disposition.
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