United States v. Rodriguez, 031417 FED9, 15-50096

Docket Nº:15-50096
Opinion Judge:FRIEDMAN, District Judge
Party Name:United States of America, Plaintiff-Appellee, v. Robert Rodriguez, Defendant-Appellant.
Attorney:Jack J. Boltax (argued), Law Office of Jack J. Boltax, San Diego, California; Leif Harrison Kleven, Law Office of Leif Kleven, San Diego, California; for Defendant-Appellant. Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Peter Ko, Assistant Unite...
Judge Panel:Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Paul L. Friedman, District Judge.
Case Date:March 14, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Robert Rodriguez, Defendant-Appellant.

No. 15-50096

United States Court of Appeals, Ninth Circuit

March 14, 2017

Argued and Submitted December 9, 2016 Pasadena, California

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding D.C. No. 3:13-cr-1128-BEN-3

Jack J. Boltax (argued), Law Office of Jack J. Boltax, San Diego, California; Leif Harrison Kleven, Law Office of Leif Kleven, San Diego, California; for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Peter Ko, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Paul L. Friedman, [*] District Judge.

SUMMARY

[**]

Criminal Law

The panel affirmed a conviction on three drug-related charges, vacated the sentence, and remanded for resentencing.

The panel held that when considering a motion to suppress wiretap evidence, a reviewing district court judge should apply the Ninth Circuit's two-step approach: (1) review de novo whether the application for a wiretap contains 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 be too dangerous; and (2) if the application meets those requirements, review for abuse of discretion the issuing judge's conclusion that the wiretap was necessary. The panel held that the district court, which focused on the fact that other judges had reviewed the wiretap applications, erred by considering evidence beyond the statements in the supporting affidavits.

The panel held that the affidavits adequately explained why the interception of wire communications was necessary to investigate this conspiracy and the target subjects, and that they contained a full and complete statement of facts to establish necessity under 18 U.S.C. § 2518(1)(c). The panel held that the district court did not abuse its discretion in finding necessity.

The panel held that the district court's application of 21 U.S.C. § 851 to enhance the defendant's sentence did not violate his Sixth Amendment rights. The panel held that the district court failed to comply with 21 U.S.C. § 851(b) when it did not ask the defendant if he affirmed or denied the prior convictions and did not inform him that he had to raise any challenge to a prior conviction before the sentence was imposed. The panel concluded that the error was not harmless. The panel wrote that two additional procedural defects warrant remand: the district court appears to have been uncertain of its responsibilities under § 851 as the sentencing hearing unfolded, and it is unclear whether the district court used the appropriate standard when ruling on the merits of the § 851 issues.

The panel held that the district court did not violate the defendant's constitutional rights by applying an upward adjustment under U.S.S.G. § 3B1.1 without submitting to a jury the issue of whether the defendant was a leader of criminal activity, nor clearly err in denying the defendant a downward adjustment under U.S.S.G. § 3E1.1(a) for acceptance of responsibility.

OPINION

FRIEDMAN, District Judge

Robert Rodriguez appeals from his conviction after a jury trial on three drug-related charges: (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846; (2) conspiracy to import methamphetamine, in violation of 21 U.S.C. § 952; and (3) distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and his sentence of 600 months in prison, followed by a lifetime of supervised release. He argues that the district court erred because it applied the incorrect standard of review when deciding his motion to suppress and that the government's wiretap application did not include a full and complete statement of facts as required by 18 U.S.C. § 2518(1)(c). Rodriguez also argues that the district court erred when it (1) enhanced Rodriguez's sentence under 21 U.S.C. § 851 after finding three prior convictions, (2) applied an organizer/leader upward adjustment under United States Sentencing Guidelines (U.S.S.G.) § 3B1.1, and (3) denied a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. He also maintains that his sentence of 600 months is substantively unreasonable.

We have jurisdiction under 28 U.S.C. § 1291; we affirm Rodriguez's conviction, vacate his sentence, and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an investigation in North San Diego County called "Operation Corridor, " in which state and federal officers jointly investigated extortion and drug trafficking by local street gangs and the Mexican Mafia, the largest prison gang in the United States. The Mexican Mafia is a violent organization that requires street gangs to pay "taxes" in the form of cash, drugs, or other property. If a gang pays the "tax, " the Mexican Mafia will allow that gang to operate in and sell drugs in their neighborhoods. Those who do not pay taxes experience robbery and violence at the hands of Mexican Mafia members and its associates.

Rodriguez is a self-identified member of the Tri-City Thunder Hills Gang, which law enforcement officers believed was closely associated with and "answered to" the Mexican Mafia. Rodriguez also led a conspiracy involving the importation of methamphetamine from Mexico and its distribution in San Diego County and in South Carolina. Rodriguez's associates included, among others, his wife Carrie Brown-Rodriguez and his codefendant at trial, Travis Job. Rodriguez hired Job to "cut" methamphetamine, a process by which another product is added to pure methamphetamine to increase its weight and thus increase the quantity available for resale.

Seeking to gain more information about Rodriguez's operation and his association with the Mexican Mafia, law enforcement officers applied for authorization to wiretap Rodriguez's phone, along with the phones of three other individuals suspected of working with the Mexican Mafia or distributing drugs. Officer John McKean submitted a 43-page affidavit in support of his application for electronic surveillance. Law enforcement officers later submitted a second wiretap application, requesting wiretaps for two phone numbers listed to Carrie Brown-Rodriguez and used by Rodriguez. Officer McKean submitted a 40-page affidavit in support of the second application. The district court authorized both wiretaps. At the time the government applied for these wiretaps, Rodriguez was subject to a Fourth Amendment search waiver as a condition of parole in an unrelated case. This fact was not included in either affidavit. The record does not contain the exact language of Rodriguez's Fourth Amendment search waiver.

A grand jury indicted Rodriguez on three counts: (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846; (2) conspiracy to import methamphetamine, in violation of 21 U.S.C. § 952; and (3) distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Before trial, the government filed an information pursuant to 21 U.S.C. § 851 seeking enhanced penalties, including a 20-year mandatory minimum, because Rodriguez committed the offenses for which he was indicted after three prior felony convictions. Rodriguez filed a motion to suppress the wiretap evidence, which the district court denied following a suppression hearing. A jury convicted Rodriguez on all counts.

At sentencing, the district court calculated Rodriguez's guidelines sentencing range by applying a two-level increase to Rodriguez's base offense level for the importation of methamphetamine under U.S.S.G. § 2D1.1(b)(5), which Rodriguez does not contest, and a four-level upward adjustment based on the conclusion that he was the manager, leader, or recruiter of a criminal activity under U.S.S.G. § 3B1.1(a). The district court denied Rodriguez's request for a two-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The court also concluded that Rodriguez was subject to a 20-year mandatory minimum under 21 U.S.C. § 851. After calculating a guidelines sentencing range of 360 months to life, the district court sentenced Rodriguez to 600 months in prison and supervised release for life.

II. WIRETAP AFFIDAVIT ISSUES

A. Standard of Review for Motions to Suppress Wiretap Evidence

Title III of the Omnibus Crime Control and Safe Streets Act allows law enforcement officers to use wiretapping in limited situations. See 18 U.S.C. §§ 2510-2522. "To obtain a wiretap, a law enforcement official must apply to a [U.S. District Court] judge for an order permitting the surveillance." United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988) (citing 18 U.S.C. § 2518(1)). Each wiretap application must meet several statutory requirements. 18 U.S.C. § 2518(1). One of those requirements dictates that each application include 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." § 2518(1)(c). A law enforcement officer typically includes this statement of facts in a sworn affidavit in support of the wiretap application. See United States v. Christie, 825 F.3d 1048, 1066 (9th Cir. 2016). The issuing judge may conclude that the application satisfies the necessity requirement if he or she determines that "normal investigative procedures...

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