FILED
NOT FOR PUBLICATION
SEP 6 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50088
Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-4
v.
MEMORANDUM*
MICHAEL ANTHONY TORRES,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50095
Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-2
v.
CESAR MUNOZ GONZALEZ, AKA
Blanco, AKA Cesar Gonzalez, AKA
Ricardo Martines, AKA Ricardo O.
Martinez, AKA Ricardo Martinez-Osorio,
AKA Osorio Ricardo,
Defendant - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
UNITED STATES OF AMERICA, No. 13-50102
Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-1
v.
RAFAEL MUNOZ GONZALEZ, AKA
“C”, AKA Cisco, AKA Homeboy, AKA
Big Homie,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50107
Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-3
v.
ABRAHAM ALDANA, AKA Listo,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Alvin Howard Matz, District Judge, Presiding
Argued and Submitted March 8, 2016
Submission Vacated September 27, 2016
Resubmitted September 6, 2017
Pasadena, California
Before: CLIFTON and IKUTA, Circuit Judges and BLOCK,** Senior District
Judge.
Rafael Munoz Gonzalez, Cesar Munoz Gonzalez, Abraham Aldana, and
Michael Torres appeal their convictions and sentences for racketeering, 18 U.S.C.
§ 1962, drug trafficking conspiracy, 21 U.S.C. § 846, and related offenses.1 We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
The district court’s Pinkerton jury instructions did not violate the common
law or due process. Our cases establish that “[c]onvictions for the use of firearms
during the commission of certain felonies pursuant to 18 U.S.C. § 924 may be
supported under a conspiracy theory.” United States v. Johnson, 444 F.3d 1026,
1029 (9th Cir. 2004); see also United States v. Alvarez-Valenzuela, 231 F.3d 1198,
1203 (9th Cir. 2000). Nor did the Pinkerton instructions offend due process
because there was a strong link between the defendants’ drug trafficking
conspiracy and the § 924(c) firearms offense. Cf. United States v. Castaneda, 9
F.3d 761, 765 (9th Cir. 1993) (holding that due process limits Pinkerton liability
only in situations “where the relationship between the defendant and the
substantive offense is slight”), overruled on other grounds by United States v.
**
The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
1
We address several of the defendants’ claims in a concurrently filed
opinion. See United States v. Torres, — F.3d — (9th Cir. 2017).
3
Nordby, 225 F.3d 1053 (9th Cir. 2000). Similarly, the district court did not err in
giving Ninth Circuit Model Criminal Jury Instruction 8.25 because under the
circumstances of this case, a reasonable jury could not have been misled by the use
of the words “action or actions” instead of the word “crime.” Finally, the district
court did not plainly err in using the term “overall conspiracy” without additional
clarification in the special verdict form for Count Seven.
The district court likewise did not err in declining to dismiss the indictment
for outrageous government conduct. Even if there was error resulting from
erroneous testimony before the grand jury, such error was “rendered harmless by
the [guilty] verdict.” United States v. Navarro, 608 F.3d 529, 540 (9th Cir. 2010)
(relying on United States v. Mechanik, 475 U.S. 66, 73 (1986)).
The district court did not err in concluding that Rafael Munoz Gonzalez was
subject to a mandatory minimum life sentence based on his conviction under 21
U.S.C. § 846. Notwithstanding the omission of § 846 from the triggering offenses
enumerated in 21 U.S.C. § 841(b)(1)(A), we have held that “[a] person who
conspires to distribute a controlled substance . . . is subject to the sentence
enhancements provided by” 21 U.S.C. § 841(b)(1)(A). United States v. O’Brien,
52 F.3d 277, 278 (9th Cir. 1995). We reject Rafael Munoz Gonzalez’s argument
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that O’Brien’s holding regarding § 846 is mere dicta because addressing the § 846
issue was a necessary component of the decision. Id. at 277–78.
The district court likewise did not err in holding that Rafael Munoz
Gonzalez’s prior convictions qualified as “felony drug offenses” triggering an
enhanced mandatory minimum sentence under § 841(b). Title 21 defines “felony
drug offense” as “an offense that is punishable by imprisonment for more than one
year under any law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic
steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Rafael
Munoz Gonzalez’s 1990 conviction under 21 U.S.C. § 846 was punishable by
more than one year of imprisonment and clearly involved conduct related to
narcotics, as his agreement to distribute illegal narcotics was itself an act satisfying
the “conduct” requirement. See United States v. Shabani, 513 U.S. 10, 16 (1994).
His conviction under section 11378 of the California Health and Safety Code for
possession of methamphetamine with intent to sell likewise qualifies as a felony
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drug offense even if we apply the categorical approach.2 Section 11378 is a
divisible statute subject to the modified categorical approach, United States v.
Ocampo-Estrada, No. 15-50471, — F.3d —, 2017 WL ___, slip op. at *14 (9th
Cir. Aug. 29, 2017), and is punishable by more than one year in prison, see Cal.
Penal Code § 1170(h)(1). The criminal complaint and electronic docket sheet from
Rafael Munoz Gonzalez’s 2000 conviction establish that he was subject to a final
conviction for possessing methamphetamine for sale. See United States v. Torre-
Jimenez, 771 F.3d 1163, 1167–69 (9th Cir. 2014) (applying the modified
categorical approach to a divisible statute). Because the federal definition of
“felony drug offense” includes methamphetamine as a controlled substance, see 21
U.S.C. § 802(9)(B), (44), Rafael Munoz Gonzalez’s specific offense of conviction
involves conduct entirely encompassed by the federal definition. Accordingly,
Rafael Munoz Gonzalez’s state conviction qualifies as a “felony drug offense”
under § 841(b).
2
Though both parties argue that the categorical approach applies when
determining whether a prior conviction is a “felony drug offense” under § 841, we
have never held in a published opinion that it applies in this context. Though we
need not reach the issue, we note that the categorical approach may be a poor fit for
sentencing determinations under 21 U.S.C. § 851, which sets up a statutory, trial-
like procedure for determining whether the defendant has a prior conviction for a
“felony drug offense.”
6
The district court did not plainly err in holding that Rafael Munoz
Gonzalez’s VICAR convictions, 18 U.S.C. § 1959(a), under Counts Five and Six
did not violate the double jeopardy clause. Gonzalez’s convictions did not arise
from “the same act or transaction,” see Blockburger v. United States, 284 U.S. 299,
304 (1932), because they arose from separate conspiracies to assault and murder
rival gang members. Gonzalez’s convictions likewise did not arise from the same
conduct. See United States v. Lynn, 636 F.3d 1127, 1136–37 (9th Cir. 2011).
Cesar Munoz Gonzalez’s Confrontation Clause rights were not violated by
his inability to cross examine the government fingerprint expert at sentencing.
“[T]he law on hearsay at sentencing is still what it was before [Crawford v.
Washington, 541 U.S. 36 (2004)]: hearsay is admissible at sentencing, so long as it
is accompanied by some minimal indicia of reliability.” United States v. Littlesun,
444 F.3d 1196, 1200 (9th Cir. 2006) (internal quotation marks omitted); see also
Williams v. New York, 337 U.S. 241, 246 (1949). Here, the testimony offered by
the government confirmed that the fingerprint exhibits submitted by the
government were sufficiently reliable to satisfy due process.
Cesar Munoz Gonzalez’s sentencing hearing was neither procedurally nor
substantively unreasonable. The district court did not abuse its discretion in
concluding that the government had established the existence of Gonzalez’s prior
7
convictions, and applied the correct standard of proof in determining that the
government had established the prior convictions beyond a reasonable doubt.
Cesar Munoz Gonzalez’s life sentence also was not substantively unreasonable
because the district court imposed the statutory mandatory minimum. See United
States v. Wipf, 620 F.3d 1168, 1170–71 (9th Cir. 2010).
The district court did not err in denying Aldana’s motion to suppress the
evidence recovered from the search of his residence. The warrant authorizing the
search was supported by probable cause, see Dawson v. City of Seattle, 435 F.3d
1054, 1062 (9th Cir. 2006), because there was direct evidence indicating that
Aldana was involved in the murder that triggered the investigation. The passage of
time between the murder and the search does not render the warrant invalid
because the “facts and circumstances taken as a whole gave the [issuing court]
probable cause to believe that the desired items would be found in the search.”
United States v. Reid, 634 F.2d 469, 473 (9th Cir. 1980). And even if the affidavit
supporting the warrant contained misleading omissions, Aldana failed to make a
“substantial preliminary showing” that the omissions were intentional or reckless
or that the affidavit would not have demonstrated probable cause if the omitted
statements were included. See United States v. Meling, 47 F.3d 1546, 1553 (9th
Cir. 1995). Because the warrant was valid, the government’s seizure of items that
8
were not mentioned in the warrant was valid under the plain view doctrine.
Washington v. Chrisman, 455 U.S. 1, 5–6 (1982).
Lastly, the district court did not commit procedural error by denying
Aldana’s request to reduce his sentence based on discharged terms of
imprisonment. At the time he was sentenced, Aldana was ineligible for a reduction
under § 5G1.3 of the Sentencing Guidelines because his prior offense did not
“result[] in an increase in the . . . offense level for the instant offense.” U.S.S.G.
§ 5G1.3, cmt. n.2(A) (2010). The Presentence Report based Aldana’s offense level
calculation on prior assault convictions that were unrelated to any aspect of this
case, and the district court adopted that calculation. See United States v. Scott, 642
F.3d 791, 801 (9th Cir. 2011).
AFFIRMED.
9