NOT FOR PUBLICATION FILED
MAY 17 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-50509
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-BEN-7
ROBERT COLLAZO, AKA Weasel,
MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50048
Plaintiff-Appellee, D.C. No.
3:13-cr-04514-BEN-1
v.
LINO DELGADO-VIDACA, AKA
Leonard Delgado, AKA Spanky,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50117
Plaintiff-Appellee, D.C. No.
3:13-cr-04514-BEN-4
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
v.
JULIO RODRIGUEZ, AKA Sniper,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50195
Plaintiff-Appellee, D.C. No.
3:13-cr-04514-BEN-2
v.
STEVEN AMADOR, AKA Gordo, AKA
Insane,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50345
Plaintiff-Appellee, D.C. No.
3:13-cr-04514-BEN-3
v.
ISSAC BALLESTEROS, AKA Lazy,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted February 6, 2019
Pasadena, California
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Before: WARDLAW and BEA, Circuit Judges, and MURPHY,** District Judge.
This case returns to us on remand from the en banc decision of United States
v. Collazo, 984 F.3d 1308 (9th Cir. 2021) (en banc). Robert Collazo, Lino
Delgado-Vidaca, Julio Rodriguez, Steven Amador, and Isaac Ballesteros were
convicted and sentenced after a two-week joint jury trial for conspiracy to conduct
racketeering activity, 18 U.S.C. § 1962(d), and conspiracy to distribute
methamphetamine and heroin, 21 U.S.C. §§ 841(a)(1), 846. We write for the
parties and assume their familiarity with the facts.
We have jurisdiction under 28 U.S.C. § 1291. We affirm the appellants’
convictions and sentences, with the exception of appellant Steven Amador’s
sentence. We vacate Amador’s sentence and remand for resentencing consistent
with this memorandum disposition.
1. Each defendant was subject to penalties under 21 U.S.C. § 841(b) in
connection with his conspiracy conviction. The district court instructed the jury
that if it found a defendant guilty of the conspiracy charge, it had to determine
“whether the government proved beyond a reasonable doubt that the amount of
**
The Honorable Stephen Joseph Murphy III, United States District Judge for
the Eastern District of Michigan, sitting by designation.
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[the specified drug] that was reasonably foreseeable to him or fell within the scope
of his particular agreement equaled or exceeded” a specified amount. Collazo, 984
F.3d at 1317. Our en banc decision in Collazo held that these instructions
concerning § 841(b) were erroneous. Id. at 1336. The en banc court held that “a
defendant convicted of conspiracy under § 846 is subject to a penalty under §
841(b)(1)(A)–(B) if the government has proven beyond a reasonable doubt that the
underlying § 841(a)(1) offense involved the drug type and quantity set forth in §
841(b)(1)(A)–(B).” Id.
A jury instruction misstating the law is subject to harmless error review.
United States v. Conti, 804 F.3d 977, 980 (9th Cir. 2015). Here, the erroneous jury
instructions were harmless, as the jury’s specific findings with respect to each
defendant necessarily satisfy the en banc court’s requirements concerning § 841(b).
Each defendant was convicted of conspiracy under § 846, and the jury further
found that each conspiracy involved a requisite drug type and amount as prescribed
in § 841(b).
2. The district court did not err by denying appellants’ motion to suppress
wiretap evidence. “The government must show that every wiretap it seeks is
necessary.” United States v. Christie, 825 F.3d 1048, 1066 (9th Cir. 2016). Here,
the McKean affidavit in support of the government’s wiretap application plainly
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satisfies the “full and complete statement” requirement of 18 U.S.C. § 2518(c).
Over the course of fourteen pages, the affidavit lists ten categories of traditional
investigative tools that had been tried and failed, or were unlikely to succeed if
tried, or too dangerous to try. See United States v. Barragan, 871 F.3d 689, 700
(9th Cir. 2017) (approving a similar affidavit involving a parallel investigation into
the Mexican Mafia in San Diego County).
Because the McKean affidavit satisfies the “full and complete statement”
requirement of § 2518(1)(c), the panel reviews the district court’s necessity finding
under § 2518(3)(c) for abuse of discretion. Necessity is “evaluated in light of the
government’s need not merely to collect some evidence,” but to collect evidence
sufficient to prove guilt beyond a reasonable doubt. United States v. Reed, 575
F.3d 900, 909 (9th Cir. 2009). In light of the McKean affidavit, it was not
“illogical, implausible, or without support in inferences that may be drawn from
the facts in the record” to conclude that the requested wiretaps were necessary. See
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009).1
3. Barragan likewise forecloses appellants’ challenge to the district court’s
“anonymous jury” procedure. 871 F.3d at 713. Barragan approved an identically-
1
We have considered appellants’ remaining procedural challenges to the wiretaps
and find them meritless.
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phrased juror questionnaire that stated that jurors’ information would be reviewed
“by the court and by the attorneys” but not “released to the general public or the
media.” Id. During voir dire, the district court offered the neutral justification that
he was using juror numbers rather than names “because it is much quicker than
reading names.” Id. And here, as in Barragan, the district court repeatedly
instructed the jury about the presumption of innocence. “We know of no case
requiring more.” Id.
4. The district court did not err by admitting the lay opinion testimony of
FBI Special Agent Michael Rod and Detective John McKean about recurring
nicknames and drug jargon used in intercepted communications. We have twice
approved lay testimony provided by an investigating officer regarding the meaning
of ambiguous terms “based upon [the officer’s] direct knowledge of the
investigation.” U.S. v. Gadson, 763 F.3d 1189, 1206 (9th Cir. 2014) (internal
quotation marks omitted) (alteration in original); United States v. Freeman, 498
F.3d 893, 904–05 (9th Cir. 2007). Because the testimony of Agent Rod and
Detective McKean goes no further than the testimony approved in Gadson and
Freeman, the district court did not abuse its discretion by admitting their
testimony. Finally, to the extent Detective McKean’s testimony about the meaning
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of the terms “runners” and “rent” conveyed inadmissible hearsay, the district
court’s error in admitting it was harmless.
5. The district court did not err by denying appellant Collazo’s motion for
substitute counsel. The Sixth Amendment requires the district court to appoint new
counsel if it determines that the defendant “has become embroiled in [an]
irreconcilable conflict” with his attorney. Brown v. Craven, 424 F.2d 1166, 1170
(9th Cir. 1970). No such conflict persisted here.
Indeed, the record suggests that any breakdown in communication at trial
between Collazo and his attorney Mary Franklin resulted from Collazo’s own
intransigence. Franklin attempted to accommodate Collazo, for instance, by
securing a second chair attorney for Collazo’s trial. By contrast, after the court
indulged Collazo’s request for a new male attorney, Collazo refused altogether to
meet with that attorney. Collazo’s “main issue” with Franklin—that she is a
woman—cannot support an irreconcilable conflict between them. See Cf. United
States v. Roston, 986 F.2d 1287, 1292–93 (9th Cir. 1993) (refusing to find
irreconcilable conflict when communication breakdown was client’s fault).
The district court likewise did not abuse its discretion by declining to
appoint substitute counsel at sentencing. Because Collazo never requested a new
attorney at sentencing, he has waived this argument. When the court asked
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Collazo, he merely replied that he wished to go forward with sentencing. After a
continuance, Collazo did not request new counsel, and Franklin argued on his
behalf. Regardless, the district court did not abuse its discretion in declining to
appoint new counsel for sentencing. Having witnessed Collazo and Franklin’s
interaction first-hand, the district court was not required to inquire further before
proceeding.
6. The district court did not err by denying Delgado’s motion for judgment
of acquittal. Delgado does not dispute that “the government showed that Garibay
was involved in a drug trafficking conspiracy.” (emphasis added). He contends
only that the government did not prove that Delgado knowingly participated in
Garibay’s conspiracy. Because Delgado does not dispute “the existence of a
conspiracy,” he can prevail only if he can show that no rational juror could have
found that he had “even a slight connection” to the conspiracy. United States v.
Perlaza, 439 F.3d 1149, 1177 (9th Cir. 2006).
The government introduced overwhelming evidence of Delgado’s
connection to Garibay and other street-level drug dealers. Delgado sent numerous
text messages to Garibay for payment after drug sales. (“homie is a lil disappointed
for not doing what were supposed b doing”). The jury heard an intercepted call in
which Delgado warned a drug dealer that he had to send “love” if he wanted to
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continue selling. And another witness testified that she delivered regular cash
payments to Delgado. Viewed in the light most favorable to the prosecution, this
evidence more than suffices to establish the requisite “slight connection” between
Delgado and Garibay’s activities.
7. The district court did not abuse its discretion either by applying a two-
level enhancement to Delgado’s base offense level for distribution of controlled
substances in prison or by applying a two-level role enhancement. Based on
Delgado’s offense level and criminal history, the district court’s 210-month
sentence—at the low end of the Guidelines range—was substantively reasonable.
Ample evidence supported the conclusion that Delgado participated in a
conspiracy with the object of distributing a controlled substance in prison. At trial,
the government introduced significant evidence of a months’ long effort to import
heroin and methamphetamine. The government introduced evidence that Delgado,
for his part, offered to pick up payments from prison pooled into a $1500 “green
dot” payment to pass along to made member Luis “Boo-Boo” Garcia. He told
Rebecca Padilla, Boo-Boo Garcia’s fiancé, that “that is what I’m here for.”
Although Delgado disputes that this evidence supports the further inference that he
intended to coordinate prison payments in furtherance of the conspiracy, the
district court did not clearly err in drawing that factual inference. Accordingly, the
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district court also did not abuse its discretion by holding under U.S. Sentencing
Guideline § 2D1.1(b)(4) that the “object” of Delgado’s offense involved the
distribution of controlled substances in prison.
The same is true of the two-level role enhancement under U.S. Sentencing
Guideline § 3B1.1(c). Section 3B1.1 provides for (a) a four-level increase to a
defendant’s offense level if a defendant was “an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive”; (b) a
three-level increase if a defendant was a “manager or supervisor (but not an
organizer or leader)” in such activity; and (c) a two-level increase if a defendant
was “an organizer, leader, manager, or supervisor in any criminal activity other
than described in (a) or (b).” By invoking subsection (c), the district court found, at
a minimum, that Delgado was a manager or supervisor in a non-extensive criminal
activity. That determination was well within the district court’s discretion, based
on the substantial evidence introduced at trial that Delgado exercised authority
over Garibay and other local drug dealers. See, e.g., (Garibay telling informant that
he would “put them on the phone with” Delgado); (Delgado texting Garibay to
request taxes); (testimony about other dealers sending cash in envelopes to
Delgado).
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Finally, the district court did not abuse its discretion by sentencing Delgado
to a 210-month sentence. See United States v. Ressam, 679 F.3d 1069, 1085 (9th
Cir. 2012) (en banc) (sentence should be reversed as substantively unreasonable
only if it would “damage the administration of justice because the sentence
imposed was shockingly high, shockingly low, or otherwise unsupportable as a
matter of law”).
8. Amador contends that the district court failed to identify and apply the
correct legal rule when it applied a four-level aggravating-role enhancement under
U.S. Sentencing Guideline § 3B1.1(a).2 We agree.
Under Section 3B1.1 application note 4, a district court “should consider”
seven factors when applying a four-level enhancement for a “leader or organizer”
as opposed to a three-level role enhancement for a “manager or supervisor.” Here,
2
The government contends that Amador raises this procedural error for this first
time on appeal, and so his claim should be reviewed for plain error. To be sure,
Amador did not object to the district court’s failure explicitly to apply the
Guidelines factors below. But he did object to his aggravating-role enhancement,
both through written objections and at his sentencing hearing. See (contending that
evidence did not establish that Mr. Amador was “a high-level associate who
operated as a secretary”) “Once a federal claim is properly presented, a party can
make any argument in support of that claim; parties are not limited to the precise
arguments they made below.” United States v. Williams, 846 F.3d 303, 311 (9th
Cir. 2016) (quoting Yee v. City of Escondido, 503 U.S. 519, 534 (1992)). Because
Amador’s claim remains that the district court erred by applying a four-level
sentencing enhancement, he did not waive any arguments advanced on behalf of
that claim. Accordingly, we review Amador’s claim for abuse of discretion.
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the district court made no mention of the Guidelines factors. In a single sentence,
the district court announced: “It certainly appears pretty clear to me that Mr.
Amador did have, in fact, an aggravated role in this conspiracy.” The district court
offered no further explanation, even though Amador’s pre-sentencing report (PSR)
recommended only a three-level increase.
To impose an aggravating role enhancement, the district court must “mak[e]
specific findings that [the defendant] qualifies for the adjustment.” United States v.
Harper, 33 F.3d 1143, 1151 (9th Cir. 1994). Because the district court made no
specific findings that Amador qualified for a four-level enhancement, we vacate
Amador’s sentence and remand for resentencing.
The appellants’ convictions and sentences are otherwise affirmed.
AFFIRMED IN PART; VACATED IN PART; REMANDED.
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