United States v. Dorsey

MEMORANDUM *

Gerald Fitzgerald Hunter appeals his conviction for conspiracy with intent to *713distribute cocaine. 21 U.S.C. §§ 846, 841(a)(1). Victor Machado appeals both his conviction and his sentence arising out of the same conspiracy. Charles Erik Dorsey appeals his sentence only. We affirm.

(1) Hunter and Machado both assert that evidence obtained from a wiretap of a certain telephone should have been suppressed because the affidavit in support of it omitted information and was insufficient. We disagree. While the affidavit may not have been perfect, after carefully hearing and considering the evidence, the district court found that the drug enforcement agent’s explanation as to a major piece of allegedly omitted information was credible and that false representations were not made about it. The district court did not find to the contrary as to any other information. Also, it determined that any omissions were not material to the issues of the wiretap order, and that if any of that immaterial, omitted information had been brought to the attention of the issuing judge, it would have made no difference (in other words, it could not have affected his decision). See United States v. Commito, 918 F.2d 95, 98-99 (9th Cir. 1990); United States v. Echavarria-Olarte, 904 F.2d 1391, 1396 (9th Cir.1990). Given the unique posture of the wiretap in this case, its actual purposes, and the surrounding circumstances, we are unable to say that the district court erred in upholding the tapping of the telephone for conversations of Hunter and a number of other known and partially known persons. See United States v. Cameiro, 861 F.2d 1171,1176 (9th Cir.1988).

(2) Machado asserts that changes in the telephone number and the Electronic Serial Number required the suppression of evidence obtained by the wiretap. Our review of the record does not confirm his claim that there was a change of the ESN number at the relevant time. At any rate, the mere fact of a change does not invalidate a wiretap.2 See United States v. Duran, 189 F.3d 1071, 1085-86 (9th Cir.1999), cert, denied, 529 U.S. 1081, 120 S.Ct. 1706, 146 L.Ed.2d 509 (2000).

(3) Machado complains that he did not have an interpreter at his sentencing hearing, but the issue was not brought to the attention of the district court and the record does not show that Machado suffered from any lack of comprehension or ability to communicate. See United States v. Mayans, 17 F.3d 1174, 1179 (9th Cir. 1994); United States v. Lim, 794 F.2d 469, 471 (9th Cir.1986). There was no plain error. See Gonzalez v. United States, 33 F.3d 1047, 1051 (9th Cir.1994); United States v. Yee Soon Shin, 953 F.2d 559, 561 (9th Cir.1992).

(4) Machado argues that the district court erred when it failed to give him a minor participant sentence adjustment. See USSG § 3B1.2(b). On this record, the district court did not clearly err. See United States v. Torres-Rodriguez, 930 F.2d 1375, 1389 (9th Cir.1991), overruled on other grounds by United States v. Hernandez, 80 F.3d 1253, 1257 (9th Cir.1996); see also United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989). We may not review his claim that the extent of the downward departure under USSG § 5K1.1 was insufficient. See United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir.1990). Machado waived his argument that the government failed to follow the terms of the plea agreement when he failed to raise that argument at the district court. See United States v. Robertson, 52 F.3d 789, 791-92 (9th Cir.1995). At any rate, the argument is not persuasive.

*714(5) Dorsey claims that when the district court failed to give him an upward adjustment pursuant to USSG § 2Dl.l(b)(l), he automatically met the weapon criterion in USSG §§ 2D1.1(b)(6), 5C1.2(2). He cites no authority for that proposition,3 and the conclusion is not apodictic. The facts of this case well illustrate that. Moreover, the burden of persuasion was upon Dorsey, and he neither argued for that relief nor presented facts that would support it. See United States v. Howard, 894 F.2d 1085, 1089 (9th Cir. 1990).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts *713of this circuit except as provided by Ninth Circuit Rule 36-3.

. We also see no merit in the claim that the government violated discovery orders.

. He does cite authority for the proposition that if you do get the upward adjustment, you cannot get the downward adjustment. See United States v. Smith, 175 F.3d 1147, 1149 (9th Cir. 1999).