FILED
NOT FOR PUBLICATION MAR 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10255
Plaintiff - Appellee, D.C. No. 4:10-cr-00753-CKJ-JJM-
5
v.
RUPERTO GUILLEN-CERVANTES, MEMORANDUM*
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-10279
Plaintiff - Appellee, D.C. No. 4:10-cr-00753-CKJ-JJM-
6
v.
BETTY CASTILLO,
Defendant - Appellant.
Appeals from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted January 13, 2014, as to 12-10255;
Submitted January 13, 2014, as to 12-10279**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.***
Co-defendants Ruperto Guillen-Cervantes and Betty Castillo were convicted
of violating 8 U.S.C. § 1324 by virtue of their participation in a conspiracy to
transport and harbor unlawful aliens. They raise a number of challenges to their
respective convictions, sentences, and forfeiture judgments. We ordered the two
cases consolidated, and we now affirm.1
1. The district court did not err in denying Guillen-Cervantes a hearing
under Franks v. Delaware, 438 U.S. 154 (1978). To merit such a hearing, a
defendant must present “allegations of deliberate falsehood or of reckless disregard
for the truth,” and “point out specifically the portion of the warrant affidavit that is
claimed to be false.” Id. at 171. Before the district court, Guillen-Cervantes did
neither. His reliance on alleged overstatements in the government’s wiretap
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
1
We address Castillo’s Fifth Amendment due process arguments in an
opinion filed this date.
2
affidavit and his promise that a misrepresentation would be revealed during a
Franks hearing, if granted, do not suffice.
2. The district court did not abuse its discretion in finding that the
government demonstrated sufficient necessity to justify the wiretap. The affidavit
set forth the government’s good faith efforts to utilize traditional investigative
techniques before seeking a wiretap and offered sufficiently particularized
arguments to support a finding of necessity. Specifically, the government provided
a number of reasons why, in the context of its investigation, physical and video
surveillance, sources of information and confidential informants, arrestees,
undercover agents, pen and trap data collection, and trash runs had been and would
continue to be unsuccessful in achieving the goals of the investigation. We employ
a “common sense approach to evaluate the reasonableness of the government’s
good faith efforts to use traditional investigative tactics or its decision to forgo
such tactics.” United States v. Rivera, 527 F.3d 891, 902 (9th Cir. 2008) (quoting
United States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005), amended on
denial of reh’g, 437 F.3d 854 (9th Cir. 2006)) (internal quotation mark omitted).
In doing so, we find that the government’s wiretap affidavit satisfies 18 U.S.C. §
2518(3)(c), especially in light of the greater leeway the government enjoys when
3
pursuing a criminal conspiracy. See United States v. Garcia-Villalba, 585 F.3d
1223, 1230 (9th Cir. 2009).
3. The district court correctly applied a preponderance of the evidence
standard in determining the number of unlawful aliens attributable to Guillen-
Cervantes. See United States v. Hernandez-Franco, 189 F.3d 1151, 1159 (9th Cir.
1999). Moreover, the district court did not clearly err in finding that Guillen-
Cervantes was responsible for the smuggling, transport, or harboring of a hundred
or more unlawful aliens for purposes of the sentencing enhancement pursuant to
U.S. Sentencing Guidelines § 2L1.1(b)(2)(C). At the forfeiture hearing, a
government agent testified that he had reviewed intercepted phone conversations
and stationary pole camera video footage from May 2009 through mid-April 2010,
and based on those efforts, he determined that Guillen-Cervantes’s business had
facilitated the transport of 114 unlawful aliens during that period. Though it is not
entirely clear whether this figure was the product of some extrapolation, we
nonetheless find no clear error because of the government agent’s firsthand review
and analysis of the phone conversations and video footage discussed above. See
Easley v. Cromartie, 532 U.S. 234, 242 (2001) (noting that reversal on clear error
requires a “definite and firm conviction that a mistake has been committed”
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)) (internal
4
quotation mark omitted)). Even if the district court should have employed a “clear
and convincing standard,” our conclusion would be unchanged.
4. Castillo’s forfeiture order does not contravene the Eighth Amendment
because the Excessive Fines Clause is inapplicable to the forfeiture of criminal
proceeds. “[C]riminal proceeds represent the paradigmatic example of ‘guilty
property,’ the forfeiture of which has been traditionally regarded as non-punitive . .
. .” United States v. 22 Santa Barbara Drive, 264 F.3d 860, 874 (9th Cir. 2001).
As a non-punitive forfeiture, Castillo’s order thus falls outside the ambit of the
Eighth Amendment. See Austin v. United States, 509 U.S. 602, 609–10 (1993).
5. The district court was not obliged to explain the disparity between
Castillo’s sentence and that of co-defendant Gloria Vera. Castillo’s reliance on
United States v. Capriola, 537 F.2d 319 (9th Cir. 1976) (per curiam), is unavailing
given that Capriola has been limited to its facts. See United States v. Hall, 778
F.2d 1427, 1428 (9th Cir. 1985). Moreover, Castillo does not argue that she
incurred a more severe sentence as a result of her exercise of a constitutional right.
See id. at 1428–29.
6. The district court’s denial of a two-level downward sentencing
adjustment for Castillo based on acceptance of responsibility did not constitute
clear error. First, Castillo did not proceed to trial in order to assert and preserve an
Page 5
issue unrelated to factual guilt. See U.S. Sentencing Guidelines Manual § 3E1.1
cmt. n.2. Rather, she contested her factual guilt in order to avoid a particular
consequence of conviction—namely, deportation. Second, the two-level
downward sentencing adjustment was not required under United States v.
McKinney, 15 F.3d 849 (9th Cir. 1994). Unlike Castillo, the defendant there
demonstrated significant contrition in his pretrial statements and conduct. See id.
at 852–53; see also U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.2 (“[A]
determination that a defendant has accepted responsibility will be based primarily
upon pre-trial statements and conduct.”).
AFFIRMED.
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