FILED
NOT FOR PUBLICATION OCT 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10508
Plaintiff-Appellee, D.C. No. 4:11-CR-02774-RCC-
LAB-1
v.
RAFAEL FRANCO-REYES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted September 11, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and BEISTLINE, Chief
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
Appellant Rafael Franco-Reyes appeals the introduction of certain evidence
at his criminal trial. Franco-Reyes also disputes the procedure used in calculating
his sentence.
Under Federal Rule of Criminal Procedure 12(b)(3), a party wishing to
suppress evidence must file a motion to suppress prior to trial. Under Rule 12(e), a
failure to timely file a motion to suppress constitutes waiver of the issue. See
United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). Here, Franco-Reyes
did not move to suppress Exhibits 7 and 8 or the agents’ testimony prior to trial.
As a consequence, Franco-Reyes waived his challenge to the admission of such
evidence.
“When a defendant does not raise an objection to his sentence before the
district court, we apply plain error review.” United States v. Hammons, 558 F.3d
1100, 1103 (9th Cir. 2009) (citation omitted). The applicable Guidelines range
must be calculated correctly; it would be a “significant procedural error” for a
district court to fail to do so. United States v. Munoz-Camarena, 631 F.3d 1028,
1030 (9th Cir. 2011).
Here, like in United States v. Carty, 520 F.3d 984, 995 (9th Cir. 2008), the
district court read both parties’ sentencing memoranda that discussed the
sentencing factors and heard both parties’ sentencing arguments. Franco-Reyes’
2
Sentencing Memorandum referenced an offense level of eighteen and a criminal
history category of III, with a resulting Sentencing Guidelines range of thirty-three
to forty-one months, including a requested two-level reduction for acceptance of
responsibility.
The district court, while not stating the offense level and criminal history
category, explicitly adopted the sentencing range proffered by Franco-Reyes in his
Sentencing Memorandum, which was arrived at by using the offense level and
criminal history category urged in that memorandum. The court also explicitly
granted the requested two-level reduction.
Like the district court in Carty, the district court here stayed within the
Guidelines range, sentencing Franco-Reyes to forty-one months. There was no
doubt among the parties as to the offense level and criminal history category relied
upon. Clear error, therefore, has not been established.
The decision of the district court is AFFIRMED.
3