NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 20 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30010
Plaintiff - Appellee, D.C. No. 3:05-cr-00201-MO-1
v.
MEMORANDUM*
BULMARO LEPEZ-ALVAREZ, AKA
Leopoldo Fuentes Carrillo,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 11, 2011
Portland, Oregon
Before: GOODWIN, PREGERSON, and M. SMITH, Circuit Judges.
Bulmaro Lepez-Alvarez appeals his convictions and 360-month sentence for
delivery of cocaine and delivery of 5 grams or more of actual methamphetamine.
We affirm the convictions and the sentence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Self-Representation
Contrary to Lepez-Alvarez’s claim, the district court did not interfere with
his right to represent himself. A defendant who is not competent to stand trial is
also not competent to waive counsel and represent himself. Godinez v. Moran, 509
U.S. 389, 398 (1993). Given the affidavit from Lepez-Alvarez’s attorney and the
psychologist’s report and testimony, the district court had reason to doubt Lepez-
Alvarez’s competence to stand trial. Thus, the district court properly ordered a
competency hearing before ruling on Lepez-Alvarez’s motion for self-
representation. See United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990)
(“Logically, the trial court cannot simultaneously question a defendant’s mental
competence to stand trial and at one and the same time be convinced that the
defendant has knowingly and intelligently waived his right to counsel.”).
Once Lepez-Alvarez’s competence was established, the district court did
nothing to interfere with his right to represent himself. The court directly asked
Lepez-Alvarez if he still wished to represent himself, and Lepez-Alvarez
responded that the matter was settled and he would proceed with his attorney.
2. Search Warrant
The search warrant satisfies the requirements of the Fourth Amendment.
The investigating detective’s affidavit is incorporated by reference into the
2
warrant, and thus may be read along with the warrant to cure any deficiencies in
the warrant itself. See United States v. SDI Future Health, Inc., 568 F.3d 684, 699
(9th Cir. 2009). The affidavit makes clear that the “prohibited conduct” referred to
in the warrant is limited to the specific crimes of possession and distribution of
cocaine and methamphetamine. Therefore, the warrant is not overbroad. Cf.
United States v. Bridges, 344 F.3d 1010, 1018 (9th Cir. 2003) (invalidating a
warrant in part because it failed to specify the crimes the defendants were alleged
to have committed). We reject Lepez-Alvarez’s additional arguments that the
language of the warrant is unclear or overbroad.
3. Sentencing
The district court committed no procedural error in sentencing Lepez-
Alvarez. The district court’s explanation for its sentence more than satisfied the
minimal requirements for a within-Guidelines sentence. See United States v.
Carty, 520 F.3d 984, 995 (9th Cir. 2008) (en banc).
As to whether the sentence was substantively reasonable, “[w]e recognize
that a Guidelines sentence ‘will usually be reasonable.’” Id. at 994 (quoting Rita v.
United States, 551 U.S. 338, 351 (2007)). Lepez-Alvarez has cited no authority
that compels us to deviate from this general approach. Even if we were to consider
his three prior felony drug convictions “low-level,” as he suggests, that would not
3
change his career-offender status. See United States v. Dewey, 599 F.3d 1010,
1017 (9th Cir. 2010). Thus, we hold that Lepez-Alvarez’s sentence was both
procedurally correct and substantively reasonable.
AFFIRMED.
4