FILED
NOT FOR PUBLICATION JUL 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30212
Plaintiff - Appellee, D.C. No. 2:11-cr-00296-JLR-2
v.
MEMORANDUM*
GABRIEL GONZALEZ-PEREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted July 12, 2013**
Seattle, Washington
Before: KLEINFELD, M. SMITH, and N.R. SMITH, Circuit Judges.
Defendant-Appellant Gabriel Gonzalez-Perez appeals his conviction and
sentence for three counts related to his distribution of heroin. See 21 U.S.C. § 841.
Because the parties are familiar with the factual and procedural history of this case,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
we repeat only those facts necessary to resolve the issues raised on appeal. We
affirm.
Gonzalez contends that the district court’s ruling limiting his questioning of
the government’s confidential informant denied him “a meaningful opportunity to
present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006).
This argument fails because the district court’s ruling did not “infring[e] upon a
weighty interest of the accused” and was not “‘arbitrary’ or ‘disproportionate to the
purposes [it was] designed to serve.’” Id. (citations omitted).
Gonzalez also contends that he is entitled to a new trial because the district
court erred by refusing to compel the government to grant use immunity to the
informant. We apply a two-prong test to determine whether due process requires
that “the district court impede on the discretion of the executive branch and compel
use immunity. . . .” United States v. Straub, 538 F.3d 1147, 1156 (9th Cir. 2008).
Specifically, the defendant must show that:
(1) the defense witness’s testimony was relevant; and (2)
either (a) the prosecution intentionally caused the defense
witness to invoke the Fifth Amendment right against self-
incrimination with the purpose of distorting the fact-
finding process; or (b) the prosecution granted immunity
to a government witness in order to obtain that witness’s
testimony, but denied immunity to a defense witness
whose testimony would have directly contradicted that of
the government witness, with the effect of so distorting
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the fact-finding process that the defendant was denied his
due process right to a fundamentally fair trial.
Id. at 1162.
Even assuming, arguendo, that the testimony Gonzalez sought to elicit from
the confidential informant was relevant, Gonzalez is not entitled to relief because
he cannot satisfy either element of the second prong of the Straub test. As the
district court properly recognized, the prosecution did not intentionally cause the
informant to invoke his Fifth Amendment rights. Nor did the prosecution grant
immunity to any government witness, or otherwise distort the fact-finding process.
Because the Straub test was not met, the district court properly denied Gonzalez’s
motion to compel the government to grant the informant use immunity.
We also reject Gonzalez’s challenge to his sentence. Gonzalez contends that
the district court erred by denying him “safety-valve” relief under the Sentencing
Guidelines. See U.S.S.G. § 5C1.2; see also 18 U.S.C. § 3553(f). To be eligible for
safety-valve relief, a defendant bears the burden to establish that he meets all five
statutory qualifying criteria, including that “the defendant did not . . . possess a
firearm . . . in connection with the offense.” U.S.S.G. § 5C1.2(a)(2).
Here, the district court reasonably concluded that Gonzalez possessed a
firearm “in connection with the offense.” Id. Gonzalez admits that he owned the
gun that law enforcement found in his stash house. He also admits that the gun
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was retrieved from a duffel bag that contained drug paraphernalia (i.e., a portable
digital scale). And Gonzalez admits that the gun was found in the same apartment
where law enforcement discovered a substantial quantity of heroin. Under these
circumstances, we simply cannot conclude that the district court’s decision that
Gonzalez possessed a firearm “in connection with the offense” was clearly
erroneous. See United States v. Ferryman, 444 F.3d 1183, 1185 (9th Cir. 2006)
(holding that “this court reviews for clear error the district court’s factual
determination that a defendant possessed firearms in connection with the offense of
conviction, making him ineligible for safety valve relief”).
AFFIRMED.
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