FILED
NOT FOR PUBLICATION
JAN 09 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10095
Plaintiff-Appellee, D.C. No.
2:10-cr-00391-JAM-6
v.
FAUSTO DIAZ-LOZANO, AKA Fausto MEMORANDUM*
Diaz,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted December 13, 2016
San Francisco, California
Before: BERZON and MURGUIA, Circuit Judges, and BLOCK,** District Judge.
Fausto Diaz-Lozano appeals his conviction and sentence for several federal
drug crimes. We affirm Diaz-Lozano’s conviction, upholding the district court’s
denial of Diaz-Lozano’s motion to suppress evidence and of an evidentiary hearing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
United States v. Diaz-Lozano, No. 14-10095
JAN 09 2017
Berzon, Circuit Judge, dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In my view, the district court clearly erred in finding the possession of
firearms at the Gilroy stash house reasonably foreseeable to Diaz-Lozano, and so
erred in applying a two-level upward adjustment under Guidelines section
2D1.1(b)(1).
“[T]he district court’s factual determination of foreseeability ‘must be
supported by the particular facts and circumstances of the underlying [offense].’”
United States v. Sarkisian, 197 F.3d 966, 990 (quoting United States v. Zelaya, 114
F.3d 869, 872 (9th Cir. 1997) (modification in original). In this case, unlike in
other cases applying an upward adjustment for co-conspirator possession of a
dangerous weapon, no specific facts indicate that Diaz-Lozano was or should have
been aware of the possession of guns at the Gilroy stash house.
There is no evidence that Diaz-Lozano ever visited the Gilroy stash house.1
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When asked whether, during a July 14, 2010 conversation Diaz-Lozano
had “describe[d] ever moving or transferring pounds of methamphetamine from
this San Jose location himself to the Sacramento area?” undercover agent Salvador
Robles answered “Yes.” Asked to describe what Diaz-Lozano had said, Robles
stated: “He told me that they had sent a vehicle to San Jose, and that vehicle had
been loaded with ten pounds of meth and brought back to Sacramento in a hidden
compartment.” When then asked whether Diaz Lozano had stated “that he was part
of this particular distribution, this ten-pound distribution,” Robles again answered
“Yes.”
He did not have any contact with the three individuals arrested there. There is also
no evidence that Diaz-Lozano knew any other individuals who spent time at the
Gilroy house, let alone that he knew any such individuals well enough to know
their “methods of operation.” See United States v. Willis, 899 F.2d 873, 875 (9th
Cir. 1990) (quoting United States v. Douglas, 780 F.2d 1472, 1476 (9th Cir.
1986)). Moreover, unlike in United States v. Garcia, 909 F.2d 1346, 1350 (9th
Cir. 1990), in which the defendant was present with co-conspirators in a vehicle in
which a gun was hidden during the relevant drug transaction, there is no evidence
that weapons were ever present at any of the drug transactions in which Diaz-
Lozano himself took part, or that Diaz-Lozano was ever otherwise in close
proximity to weapons during the course of the conspiracy.
That drugs were delivered to Diaz-Lozano’s house from a location where
weapons were present, and that he had some knowledge of the scope of the overall
drug conspiracy, is insufficient to support a finding of reasonable foreseeability.
The application of the adjustment in this case amounts to an unwarranted
“presumption as to the presence of a firearm in illicit narcotics transactions.” See
Willis, 899 F.2d at 875.
I therefore dissent as to the gun enhancement only. I concur in the remainder
of the memorandum disposition.
on the motion to suppress. Due to a procedural error in calculating Diaz-Lozano’s
offense level, we vacate Diaz-Lozano’s sentence and remand to the district court
for resentencing.
1. Diaz-Lozano argues that the district court erred by denying his motion to
suppress evidence obtained from warrantless GPS monitoring of his vehicle. In
July 2010, when law enforcement personnel placed a GPS tracking device on Diaz-
Lozano’s vehicle, “circuit precedent held that placing an electronic tracking device
on the undercarriage of a car was neither a search nor a seizure under the Fourth
Amendment,” and “that the government does not violate the Fourth Amendment
when it uses an electronic tracking device to monitor the movements of a car along
public roads.” United States v. Pineda-Moreno, 688 F.3d 1087, 1090 (9th Cir.
2012) (citing United States v. McIver, 186 F.3d 1119, 1126–27 (9th Cir. 1999);
United States v. Hufford, 539 F.2d 32, 34 (9th Cir. 1976); United States v.
Miroyan, 577 F.2d 489, 492 (9th Cir. 1978)). After the warrantless monitoring
here at issue, the United States Supreme Court held, in United States v. Jones, 132
S. Ct. 945 (2012), that the installation and use of a GPS tracking device on a
suspect’s vehicle is a Fourth Amendment search. Under Jones, placement and use
of the GPS device on Diaz-Lozano’s vehicle was unconstitutional. But we held in
United States v. Pineda-Moreno, 688 F.3d 1087, 1090 (9th Cir. 2012), that
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evidence derived from GPS monitoring before Jones is properly admitted at trial
under the good faith exception to the exclusionary rule. See Davis v. United States,
564 U.S. 229, 239 (2011). As in Pineda-Moreno, the officers in this case
reasonably relied on then-binding precedent, so the evidence obtained from the
GPS monitoring is not subject to the exclusionary rule.
Diaz-Lozano’s argument that Pineda-Moreno does not govern this case
because a GPS device was used to track his movement from public roadways onto
private property is unavailing. Although not discussed in Pineda-Moreno, the
Supreme Court rejected the distinction Diaz-Lozano attempts to make in United
States v. Knotts, 103 S. Ct. 1081 (1983). Knotts held that an individual traveling
by public roadway has no expectation of privacy as to “the fact of his final
destination when he exited from public roads onto private property.” Id. at 1085.
Knotts further held that there is no “expectation of privacy extended to the visual
observation of [a suspect’s] automobile arriving on his premises after leaving a
public highway.”
2. The district court’s decision not to conduct an evidentiary hearing on the
scope of GPS monitoring was not an abuse of discretion. See United States v.
Howell, 231 F.3d 615, 620 (9th Cir. 2000). The government has unequivocally
stated that it is not aware of the installation of any GPS or other surveillance
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devices in the investigation of Diaz-Lozano apart from the device installed on July
6, 2010. Diaz-Lozano has not alleged facts to the contrary “with sufficient
definiteness, clarity, and specificity” to demonstrate contested issues of fact
warranting an evidentiary hearing. See id.
3. As to sentencing, we affirm the district court’s decision with respect to the
actual amount and purity of methamphetamine, Diaz-Lozano’s ineligibility for an
acceptance of responsibility reduction, and the foreseeability of firearms possessed
by co-conspirators. The district court’s finding that Diaz-Lozano played a
managerial role such that he was eligible for a three-level upward adjustment was,
however, clear error. Accordingly, we vacate and remand for resentencing.
a. The evidence in the record supports the district court’s finding that five
pounds of actual methamphetamine were involved in an April 19, 2010 drug
transaction. The sentencing guidelines permit the district court to approximate the
quantity of controlled substances at issue where “the amount seized does not reflect
the scale of the offense.” U.S.S.G. § 2D1.1 (2012) (cmt. 5).1 Two intercepted
phone conversations on April 19 between Diaz-Lozano and other individuals
discussed a delivery of drugs planned for that day. The second call, with Joel Lara,
1
All references to the United States Sentencing Guidelines (“U.S.S.G.”) are
to the 2012 version, which was in effect at the time of Diaz-Lozano’s sentencing.
4
indicated that Lara was bringing “five shirts”2 to Diaz-Lozano’s house. About
twenty-five minutes after the second call, two vehicles arrived at Diaz-Lozano’s
house. Surveillance teams observed Lara exiting one of the vehicles, accessing the
trunk of the other vehicle, and then going into Diaz-Lozano’s house. One of the
cars left within ten minutes, and Lara and the other vehicle remained at the house.
About two hours later, another vehicle, a Nissan Maxima, arrived, and its
occupants went inside with Diaz-Lozano and Lara. The Nissan Maxima and its
occupants left after about twenty-five minutes, and shortly thereafter California
Highway Patrol stopped the vehicle and seized 1.5 pounds of methamphetamine.
This sequence of events supports the district court’s approximation that the
entire transaction involved the five pounds of actual methamphetamine alluded to
in the phone call. Moreover, the district court did not err when it extrapolated the
purity of the remainder of the methamphetamine from the purity of the drugs
seized. See United States v. Lopes-Montes, 165 F.3d 730, 732 (9th Cir. 1999)
(“[U]sing the purity of drugs actually seized to estimate the purity of the total
quantity of drugs the defendant agreed to deliver is an appropriate method of
establishing the base offense level.”).
2
In one conversation with undercover agent Robles, Diaz-Lozano used the
term “shirt” to describe a pound of methamphetamine.
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b. The district court also properly declined to grant a downward adjustment
for acceptance of responsibility under Guidelines section 3E1.1(a), as Diaz-Lozano
raised a factual defense at trial, arguing that he was “merely present” during the
charged conduct. See United States v. Wilson, 392 F.3d 1055, 1063 (9th Cir. 2004)
(denying a downward adjustment for acceptance of responsibility where the
defendant disputed his involvement in a drug conspiracy and “maintained his
factual innocence during and after trial”).
c. The district court also did not err in applying an upward adjustment based
on the reasonably foreseeable possession of firearms by Diaz-Lozano’s co-
conspirators at the Gilroy stash house during the commission of the offense. See
U.S.S.G. §§ 1B1.3(a)(1)(B), 2D1.1(b)(1). The presence of the firearms at the
house where drugs were being stored indicates that the firearms were connected to
the methamphetamine conspiracy for which Diaz-Lozano was convicted. The
district court did not clearly err in finding the presence of those firearms
reasonably foreseeable to Diaz-Lozano. See United States v. Alvirez, 831 F.3d
1115, 1121 (9th Cir. 2016) (“We review a district court’s findings of fact to
support a sentencing enhancement for clear error.”). Several pieces of evidence
link Diaz-Lozano directly to the Gilroy stash house where the two firearms were
recovered: he received deliveries of several pounds of drugs which came from the
6
stash house; he referred in both intercepted phone calls and in conversations with
an undercover agent to San Jose as his source of drugs, which was understood by
investigators to refer to Gilroy; ledgers at the Gilroy house listed Diaz-Lozano’s
name; and Diaz-Lozano told an undercover agent that he had previously brought
10 pounds of methamphetamine (either personally or by sending someone else)
from San Jose (again, understood to refer to Gilroy) to Sacramento. Moreover,
Diaz-Lozano knowingly participated in a large scale drug conspiracy. He indicated
to undercover agents that the people he purchased methamphetamine from were
associated with La Familia, a Mexican drug cartel, and he admitted to delivering
drug proceeds to Mexico.
In United States v. Garcia, we held that the defendant “should reasonably
have foreseen that [his co-conspirator] would possess a gun during the execution of
such a major drug sale,” where “the drug transaction involved approximately 17
kilograms of cocaine, and the negotiations leading up to the sale lasted nearly one
month.” 909 F.2d 1346, 1350 (9th Cir. 1990). Here, Diaz-Lozano was involved in
a large-scale trafficking operation, lasting nearly one year and yielding over 600
pounds of drugs. Given Diaz-Lozano’s connection to the Gilroy stash house and
his knowledge of the scale of the drug conspiracy, the district court did not clearly
7
err in finding the possession of dangerous weapons by co-conspirators to be
reasonably foreseeable to Diaz-Lozano.
d. There is not, however, sufficient evidence in the record to support the
three-level upward adjustment for an aggravating role under Guidelines section
3B1.1(b). The district court based the three-level upward adjustment on the
marijuana conspiracy alone, finding evidence that Diaz-Lozano supervised Roberto
Bermudez-Ornelas, who helped tend the marijuana gardens. But there is no
evidence that the marijuana conspiracy involved more than five people or was
otherwise extensive, as is required by the guidelines for the three-level upward
adjustment. See U.S.S.G. § 3B1.1(b). Nor is there evidence that the marijuana and
methamphetamine conspiracies were connected; the conspiracies were charged
separately and involved only one overlapping defendant apart from Diaz-Lozano.
On remand, the district court may consider whether there is sufficient
evidence of Diaz-Lozano’s managerial or supervisorial role as to the
methamphetamine conspiracy to support the three-level upward adjustment, or,
alternatively, whether a two-level adjustment is appropriate.
CONVICTION AFFIRMED, SENTENCE VACATED and REMANDED.
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