NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10034
Plaintiff - Appellee, D.C. No. 4:10-cr-03279-TUC-
JGZ-1
v.
PAULINO LOPEZ-RIVAS, aka Chapo, MEMORANDUM*
aka Paulino Quintero
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted May 13, 2015
San Francisco, California
Before: THOMAS, Chief Judge, OWENS, Circuit Judge, and BATTAGLIA,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
Paulino Lopez-Rivas appeals his conviction of conspiracy to possess 1000
kilograms of marijuana with the intent to distribute and the 168-month custodial
sentence imposed by the district court. Lopez-Rivas maintains that a new trial is
warranted because the government failed to disclose material impeachment
evidence about a key government witness in violation of Brady v. Maryland, 373
U.S. 83 (1963). Lopez-Rivas further contends his Fifth and Sixth Amendment
rights were violated by the district court’s failure to declare a mistrial. Finally,
Lopez-Rivas argues the district court erred in calculating his sentencing guidelines
range, specifically by imposing a two-level enhancement for possession of a
firearm and a three-level enhancement for Lopez-Rivas’s role in the conspiracy.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
A district court’s denial of a mistrial based on an alleged Brady violation is
reviewed de novo. United States v. Howell, 231 F.3d 615, 624 (9th Cir. 2000).
Lopez-Rivas argues that his Fifth Amendment Due Process and Sixth Amendment
Confrontation Clause rights were violated by the failure of the government to
disclose a confidential informant’s prior, unrelated work as a paid informant for the
Drug Enforcement Agency (DEA). “Under Brady, the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment.” United States v.
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Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011) (internal quotation marks omitted).
“There are three components of a Brady violation: [t]he evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.” Id. (alteration in original)
(internal quotation marks omitted). Lopez-Rivas’s Brady claim fails to establish
suppression because the information was disclosed during trial, at a time when it
was still useful to the defense. See United States v. Vgeri, 51 F.3d 876, 880 (9th
Cir. 1995) (impeachment evidence disclosed during trial was still valuable because
the defense could use it on cross-examination). Moreover, although the
information regarding the confidential informant was favorable to Lopez-Rivas, the
witness’s credibility was sufficiently undermined and Lopez-Rivas cannot
demonstrate prejudice from the mid-trial disclosure. See United States v.
Rodriguez, 766 F.3d 970, 989 (9th Cir. 2014).
Lopez-Rivas’s Sixth Amendment arguments are similarly unavailing.
Lopez-Rivas claims that his Sixth Amendment right to counsel, his Confrontation
Clause right to effective cross-examination, and his right to present his theory of
defense were violated by the district court’s failure to declare a mistrial following
the disclosure of the witness’s prior status as a DEA informant. The arguments
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raised by Lopez-Rivas are unsupported by the record and do not warrant a new
trial. Lopez-Rivas expressly disclaims an ineffective assistance of counsel claim.
Moreover, Lopez-Rivas was permitted to present his theory of the defense, one
based largely on discrediting the witness-informant, throughout the trial. Lopez-
Rivas was provided the recently discovered information about the witness’s prior
informant status, given an opportunity to review that information, and then
permitted to continue cross-examination, employing all newly discovered
evidence. The cross-examination of the witness “raised reasonable doubts as to
[the witness’s] motivation for testifying and there was sufficient impeachment
evidence” for the jury to consider, Gentry v. Sinclair, 705 F.3d 884, 905 (9th Cir.
2013), and thus no Confrontation Clause violation occurred. See United States v.
James, 139 F.3d 709, 713 (9th Cir. 1998). Lastly, Lopez-Rivas was not denied the
opportunity to present his theory of the case because the information disclosed at
trial complemented the defense strategy of attacking the credibility of the
government witness.
Lopez-Rivas argues that the district court erred in calculating his sentencing
guidelines by (1) applying a two-level enhancement for possession of a firearm by
a co-conspirator, (2) applying a three-level enhancement for managerial role, and
(3) denying a downward departure for acceptance of responsibility. A district
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court’s factual findings in sentencing are reviewed for clear error. United States v.
Doe, 778 F.3d 814, 821 (9th Cir. 2015). No such error ensued. The record reflects
adequate evidence to warrant application of the firearm enhancement, particularly
as actual possession of a firearm is not required. United States v. Lopez-Sandoval,
146 F.3d 712, 714 (9th Cir. 1998); see also U.S. Sentencing Guidelines Manual
§ 1B1.3 cmt. n.2. Likewise, the record supports the district court’s three-level
enhancement for Lopez-Rivas’s role in the conspiracy. Lopez-Rivas’s final
objection to the denial of a downward departure for acceptance of responsibility
was omitted from discussion in his opening brief, and thus was waived. United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (discussing exceptions to this
rule not applicable here).
AFFIRMED.
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