United States v. Luis Ceja ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 20-50204
AMERICA,
Plaintiff-Appellee, D.C. Nos.
2:18-cr-00742-RGK-DMG-1
v. 2:18-cr-00742-RGK-DMG
LUIS FERNANDO CEJA,
AKA Chako, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted December 8, 2021
Pasadena, California
Filed January 26, 2022
Before: Paul J. Kelly, Jr., * Milan D. Smith, Jr., and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Kelly
*
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. CEJA
SUMMARY **
Criminal Law
The panel affirmed a conviction and sentence for
conspiracy to distribute methamphetamine, distribution of
methamphetamine in the amount of at least 50 grams,
distribution of methamphetamine in the amount of at least
five grams, and distribution of methamphetamine within
1,000 feet of a school.
The defendant argued that his oral jury trial waiver was
invalid, in this case in which both parties agreed that the
district court did not inform the defendant of all four facts
that make up a “substantial colloquy” under United States v.
Cochrane, 770 F.2d 850 (9th Cir. 1985). In particular, the
district court did not inform the defendant that he could take
part in jury selection or that the jurors would be members of
his community. Noting that this court’s precedent permits
oral jury trial waivers, the panel held that the district court’s
colloquy was adequate to ensure that the defendant
knowingly, voluntarily, and intelligently waived his trial.
The panel wrote that because the jury trial waiver was
conducted orally through a court-interpreter, the defendant’s
language skills were not a barrier at his waiver proceeding,
and there is no evidence that the defendant suffers from
emotional or cognitive disabilities.
Reviewing the district court’s denial of the defendant’s
motion for substitute counsel, the panel held that, given the
subject matter of the colloquy (the defendant’s
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. CEJA 3
dissatisfaction with his counsel’s suggested outcomes), the
district court did not abuse its discretion in summarizing its
ruling using the language of “inadequacy” rather than
“conflict”; and that the district court’s inquiry, though brief,
was more than adequate to discern the defendant’s
complaints.
The defendant argued that the evidence was insufficient
to convict him of distribution of at least 50 grams of
methamphetamine. Without resolving whether a
defendant’s failure to challenge an indictment that could be
duplicitous waives a later challenge based on insufficiency
of the evidence, the panel wrote that even if it were to reach
the merits of the defendant’s sufficiency of the evidence
claim, the claim would not succeed, because a rational trier
of fact viewing the evidence in the light most favorable to
the government could find that the defendant distributed 50
grams of methamphetamine in one distribution beyond a
reasonable doubt.
Challenging the district court’s application of the career
offender guideline at sentencing, the defendant contended
that his prior convictions under California Health and Safety
Code § 11378 are not controlled substance offenses because
the California methamphetamine provisions sweep more
broadly than the federal provisions. The panel held that even
assuming the district court erred under Fed. R. Crim. P. 32
by making no explicit factual finding on the defendant’s
objection to the Presentence Report regarding whether
geometrical isomers exist, and assuming that error was plain,
the error was harmless because under United States v.
Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020),
California’s definition of methamphetamine is a categorical
match to the definition under federal law based on the
4 UNITED STATES V. CEJA
scientific fact that geometrical isomers of methamphetamine
do not exist.
COUNSEL
Carlton F. Gunn (argued), Law Office of Carlton Gunn,
Pasadena, California, for Defendant-Appellant.
Andrew M. Roach (argued) and Gregg Marmaro, Assistant
United States Attorneys; Bram M. Adlen, Chief, Criminal
Appeals Section; Tracy L. Wilkison, Acting United States
Attorney; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellee.
OPINION
KELLY, Circuit Judge:
Defendant-Appellant Luis Fernando Ceja appeals his
conviction and sentence for conspiracy to distribute
methamphetamine, 21 U.S.C. § 846; distribution of
methamphetamine in the amount of at least 50 grams,
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii); distribution of
methamphetamine in the amount of at least five grams,
21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii); and distribution of
methamphetamine within 1,000 feet of a school, 21 U.S.C.
§ 860(a). We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), and we affirm.
UNITED STATES V. CEJA 5
FACTUAL AND PROCEDURAL HISTORY
A. Indictment and Drug Offenses
On October 25, 2018, Mr. Ceja was indicted for three
sales of methamphetamine to an informant occurring on
October 21, October 29, and November 5, 2014. The
transactions were captured on audio and video. On October
21, Mr. Ceja indirectly sold two ounces to the informant
through a co-conspirator. On October 29, the informant
called the co-conspirator and requested one more ounce of
methamphetamine but explained she would purchase two
ounces if the co-conspirator could introduce her to Mr. Ceja.
At the co-conspirator’s house located near a middle school,
the informant met Mr. Ceja and paid him for two ounces of
methamphetamine. Mr. Ceja gave the informant one ounce
and asked the informant to follow him in a car to obtain the
second ounce. The parties took a short drive and parked near
an apartment complex, where Mr. Ceja entered and re-
emerged and gave the informant the second ounce. On
November 5, Mr. Ceja distributed an additional ounce to the
informant.
B. Request for Substitute Counsel
A few months after his arrest, Mr. Ceja filed an ex parte
application seeking a hearing “regarding status of counsel”
without providing a reason for the request. The court held a
hearing on August 6, 2019. Mr. Ceja was assisted by a
Spanish interpreter throughout his court proceedings.
Initially, Mr. Ceja only asked the court for assignment to a
drug rehabilitation or house arrest program. The court asked
whether Mr. Ceja had discussed the request with his
attorney, and Mr. Ceja’s attorney told the court that Mr. Ceja
had rejected a plea agreement and “want[ed] another lawyer
that can help him.” The court noted that Mr. Ceja had not
6 UNITED STATES V. CEJA
yet specifically requested a new attorney and took a brief
recess for Mr. Ceja to confer with his attorney. After the
recess, the district court asked again what Mr. Ceja wanted
the court to do. Mr. Ceja responded:
DEFENDANT: That I want to change my
attorney because as my attorney, he is not
helping me.
COURT: In what way?
DEFENDANT: He wants me to accept ten
years, and I don’t think that’s right. And as
my attorney, he’s not helping me to do the
things that I’m telling him to do. That’s why
I would like to know if you can provide me
with another attorney who will help me.
The court responded that it was not counsel’s job to “tell you
what you want to hear” and that “there’s no indication that
another attorney would tell you anything else.” The court
then asked:
COURT: Is there anything specifically that
he has done that you think is inadequate or
improper?
DEFENDANT: Well, he wanted me to sign
for ten years, and that’s a lot of time.
COURT: But [you] don’t have to sign for ten
years. That’s your choice. He probably told
you he thinks it’s best for you to sign for ten
years?
UNITED STATES V. CEJA 7
DEFENDANT: Yes. But I told him to help
me with a rehab program for the drugs,
whatever is needed because I have to take
care of my children who are outside.
COURT: Well, . . . I haven’t heard anything
to justify inadequacy of counsel. Is there
anything else [Counsel] can add?
COUNSEL: I really have nothing. There is
no conflict that I see, Your Honor.
The district court then asked if there was “anything else
anybody wants to say,” and Mr. Ceja’s attorney repeated that
he had requested the hearing because Mr. Ceja wanted to talk
to the court about getting a new lawyer. The district court
concluded that “there’s no showing of inadequacy of counsel
or counsel and the client” and rejected Mr. Ceja’s request.
C. Oral Jury Trial Waiver
After filing, and withdrawing, a second request for a new
attorney, Mr. Ceja waived his right to a jury trial on February
25, 2020, after the following colloquy:
COURT: Okay. Mr. Ceja, is that your desire
to have a court trial which means the judge
would decide innocence or guilt, not a jury?
DEFENDANT: Yes.
COURT: Okay. You understand that you
have a right to have a jury make that decision,
and a jury trial 12 people would have to agree
unanimously beyond a reasonable doubt to
8 UNITED STATES V. CEJA
find you guilty of the offense. Do you
understand that?
DEFENDANT: Yes.
COURT: And until and unless they do, you
have got a right to be presumed innocent. But
if you have a Court trial, it’s the judge that
has to hear the evidence and make a decision
whether or not the government has proved
their case beyond a reasonable doubt, not the
jury, so that would be the Court’s decision. Is
that agreeable with you?
DEFENDANT: Yes.
The district court remarked that Mr. Ceja’s oral jury trial
waiver “seem[ed] to be knowing, intelligent, free and
voluntary.”
D. Bench Trial and Verdict
Mr. Ceja’s bench trial began on March 10, 2020. Before
trial, the government, defense counsel, and Mr. Ceja all
confirmed that both sides had waived a jury trial. After a
one-day bench trial, the court found Mr. Ceja guilty on all
four counts for which he was tried.
E. Sentencing and Application of the Career Offender
Guideline
Mr. Ceja’s sentencing guideline range was 360 months
to life imprisonment based on the career offender guideline.
See U.S.S.G. § 4B1.1. This differed from an earlier pre-plea,
Presentence Report (PSR) that did not classify Mr. Ceja as a
career offender. The pre-plea PSR concluded Mr. Ceja’s
UNITED STATES V. CEJA 9
prior convictions under California Health and Safety Code
§ 11378 were not controlled substance offenses under the
career offender guideline. However, between the pre-plea
PSR and post-verdict PSR, we decided United States v.
Rodriguez-Gamboa, 946 F.3d 548 (9th Cir. 2019). In light
of that decision, the probation office updated its PSR,
concluding that Mr. Ceja’s prior convictions were controlled
substance offenses, and the career offender guideline
applied. Mr. Ceja objected. At sentencing, the district court
did not address his objection but nevertheless varied
downward because of Mr. Ceja’s reliance on the pre-plea
PSR, imposing a 240-month sentence.
DISCUSSION
On appeal, Mr. Ceja argues that his convictions and
sentence must be vacated because: (1) his oral jury trial
waiver was invalid; (2) the district court abused its discretion
in rejecting his request for substitute counsel; (3) the
evidence is insufficient with respect to his conviction of
distribution of at least 50 grams of methamphetamine; and
(4) the court erroneously treated his prior convictions as
controlled substance offenses under the career offender
guideline.
A. Oral Jury Trial Waiver
The adequacy of a jury trial waiver is reviewed de novo.
United States v. Shorty, 741 F.3d 961, 965 (9th Cir. 2013).
Federal Rule of Criminal Procedure 23(a) requires three
conditions for a defendant to waive his right to a jury trial:
“(1) the defendant waives a jury trial in writing; (2) the
government consents; and (3) the court approves.” Case law
requires a fourth condition: the waiver must be knowing,
voluntary, and intelligent. United States v. Cochran,
770 F.2d 850, 851 (9th Cir. 1985). Despite Rule 23(a)’s
10 UNITED STATES V. CEJA
language requiring written waivers, an oral waiver may be
sufficient in certain cases. Shorty, 741 F.3d at 966. A
written waiver carries the presumption that it was made
knowingly, voluntarily, and intelligently. Id. Where there
is no written waiver—as in this case—there is no such
presumption. See id.
In Cochran, this court “implored”—but did not
mandate—district courts to ensure jury trial waivers are
knowing, voluntary, and intelligent by engaging in a
“substantial colloquy” that informs the defendant of four
facts: “(1) twelve members of the community compose a
jury; (2) the defendant may take part in jury selection;
(3) jury verdicts must be unanimous; and (4) the court alone
decides guilt or innocence if the defendant waives a jury
trial.” 770 F.2d at 852–53. However, the described
substantial colloquy is required where a defendant’s mental
or emotional state is a salient fact putting the court on notice
that a defendant’s waiver may not be knowing and
intelligent. United States v. Christensen, 18 F.3d 822, 825–
26 (9th Cir. 1994). Both parties agree that the district court
did not inform Mr. Ceja of all four facts that make up a
substantial colloquy. In particular, the district court did not
inform Mr. Ceja that he could take part in jury selection or
that the jurors would be members of his community.
However, nothing suggested that Mr. Ceja’s waiver might
not be knowing and intelligent, and thus the failure of the
district court to explicitly explain the jury selection process
is not determinative.
Mr. Ceja argues that his language barrier and eighth-
grade education obtained in a foreign country constituted
salient facts that put the district court on notice that his
waiver was not knowing and intelligent. Mr. Ceja relies
heavily on United States v. Duarte-Higareda, 113 F.3d 1000UNITED STATES V. CEJA 11
(9th Cir. 1997), in arguing that his language barrier required
a substantial colloquy, but the facts of that case are readily
distinguishable. Mr. Duarte-Higareda also used a Spanish
interpreter throughout his district court proceedings, but
unlike Mr. Ceja, Mr. Duarte-Higareda waived his right to a
jury trial in writing using a form that was printed entirely in
English, and there was no evidence that the written waiver
was ever translated. Id. at 1002. Because Mr. Ceja’s jury
trial waiver was conducted orally through a court-certified
interpreter, his language skills were not a barrier at his
waiver proceeding.
Mr. Ceja also relies heavily on Christensen and Shorty
to argue that his limited education in a foreign country
constitutes a salient fact, but, again, these cases are
inapposite. In Christensen, the defendant’s manic-
depressive disorder required further inquiry into the
voluntariness of his waiver. 18 F.3d at 825. In Shorty, the
defendant had a “low I.Q.” and was “learning disabled.”
741 F.3d at 967. Here, there is no evidence that Mr. Ceja
suffers from emotional or cognitive disabilities. Thus, where
this court’s precedent permits oral jury trial waivers, the
district court’s colloquy was adequate to ensure that Mr.
Ceja knowingly, voluntarily, and intelligently waived his
right to a jury trial.
B. Motion for Substitute Counsel
This court reviews the denial of a motion for substitute
counsel for an abuse of discretion and considers: “(1) the
timeliness of the motion; (2) the adequacy of the district
court’s inquiry; and (3) whether the asserted conflict was so
great as to result in a complete breakdown in communication
and a consequent inability to present a defense.” United
12 UNITED STATES V. CEJA
States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir.
2009). Mr. Ceja challenges the second factor. 1
First, Mr. Ceja argues that the district court erroneously
focused on counsel’s competency, rather than the conflict
between Mr. Ceja and his counsel. “[T]he proper focus . . .
is on the nature and extent of the conflict between defendant
and counsel, not on whether counsel is legally competent.”
United States v. Walker, 915 F.2d 480, 483 (9th Cir. 1990),
overruled on other grounds by United States v. Nordby,
225 F.3d 1053 (9th Cir. 2000). Although the district court
did not directly discuss the purported conflict between
Mr. Ceja and his counsel, it did acknowledge that Mr. Ceja’s
counsel did not see a conflict and received no substantive
response after asking if there was anything else anybody
wanted to add. Given the subject matter of the colloquy
(Mr. Ceja’s dissatisfaction with his counsel’s suggested
outcomes) and its context, the district court did not abuse its
discretion in summarizing its ruling on the motion using the
language of “inadequacy” rather than “conflict.”
Second, Mr. Ceja argues that the district court’s inquiry
was not sufficiently in-depth. A court’s inquiry must
provide an adequate foundation for making an informed
ruling. United States v. Reyes-Bosque, 596 F.3d 1017, 1033
(9th Cir. 2010). Open-ended questions aimed at
understanding the core of the issues between a defendant and
1
The government argues that Mr. Ceja waived this argument on
appeal due to his February 2020 request for new counsel and subsequent
withdrawal of that request. Because courts should make every
reasonable presumption against a finding of waiver of constitutional
rights, Gete v. INS, 121 F.3d 1285, 1293 (9th Cir. 1997), we do not deem
this claim regarding Mr. Ceja’s August 2019 request for new counsel to
be waived based on Mr. Ceja’s withdrawal of a subsequent request for
new counsel.
UNITED STATES V. CEJA 13
counsel are adequate. See Mendez-Sanchez, 563 F.3d
at 942–43. Although brief, the district court’s inquiry was
more than adequate to discern Mr. Ceja’s underlying
complaints. The district court was able to discern twice—
both before and after the court’s recess—that the source of
the purported conflict was Mr. Ceja’s dissatisfaction with the
ten-year plea deal and counsel’s inability to get him into a
rehab program. The open-ended questions and Mr. Ceja’s
responses allowed the district court to evaluate whether there
was a severe conflict amounting to a breakdown of
communication in the attorney-client relationship. See
United States v. McKenna, 327 F.3d 830, 844 (9th Cir.
2003). The district court did not abuse its discretion in
considering this motion.
C. Sufficiency of Evidence
Mr. Ceja argues that the evidence was insufficient to
convict him of distribution of at least 50 grams of
methamphetamine. The government argues that Mr. Ceja
waived this claim for appellate review because his
sufficiency of the evidence claim is merely a duplicity
challenge to his indictment in disguise. Federal Rule of
Criminal Procedure 12(b)(3)(B)(i) is clear that any defense
involving a defect in the indictment, including “joining two
or more offenses in the same count (duplicity),” must be
raised in a pretrial motion or it is waived. See United States
v. McCormick, 72 F.3d 1404, 1409 (9th Cir. 1995). Mr. Ceja
contends that he properly brings a sufficiency of evidence
claim as he is asserting a violation of his “constitutional right
not to be convicted of a criminal offense for which there is
insufficient evidence.”
We have not resolved whether a defendant’s failure to
challenge an indictment that could be duplicitous waives a
later challenge based on insufficiency of the evidence. And
14 UNITED STATES V. CEJA
we need not do so here because even if we were to reach the
merits of Mr. Ceja’s sufficiency of the evidence claim, it
would not succeed. A rational trier of fact viewing the
evidence (including the audio and video recordings) in the
light most favorable to the government could find that Mr.
Ceja distributed 50 grams of methamphetamine in one
distribution beyond a reasonable doubt. See United States v.
Laney, 881 F.3d 1100, 1106 (9th Cir. 2018). While Mr. Ceja
gave the informant two one-ounce baggies of
methamphetamine at different locations, the deliveries
occurred a short distance apart, within a short period of time,
between the same individuals, and shortly after Mr. Ceja was
given a single payment for both ounces. Consequently, the
deliveries are sufficiently related to be rationally considered
one distribution. See United States v. Mancuso, 718 F.3d
780, 793–94 (9th Cir. 2013); cf. United States v. Palafox,
764 F.2d 558, 562–63 (9th Cir. 1985) (en banc) (finding drug
offenses “committed at virtually the same time, in the same
place, and with the same participants” should not be
compounded for punishment purposes, in contrast to
distributions involving “two different individuals as part of
two separate transactions”).
D. Application of the Career Offender Guideline
Whether a conviction qualifies as a controlled substance
offense is a question of law reviewed by this court de novo.
United States v. Leal-Vega, 680 F.3d 1160, 1163 (9th Cir.
2012).
The district court found that Mr. Ceja qualified as a
career offender because his two prior convictions under
California Health and Safety Code § 11378 are controlled
substance offenses. Mr. Ceja contends that his prior state
convictions are not controlled substance offenses because
the California methamphetamine provisions sweep more
UNITED STATES V. CEJA 15
broadly than the federal provisions, and the career offender
guideline should not have been applied. However, both
Mr. Ceja and the government agree that United States v.
Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020), controls
as a matter of law, and that this case squarely rejects
Mr. Ceja’s argument regarding his prior state convictions.
The district court correctly applied the career offender
guideline under Rodriguez-Gamboa.
Mr. Ceja also objected to his PSR on the basis that
“whether geometric isomers of methamphetamine exist is a
factual issue that remains to be resolved in the district court.”
Federal Rule of Criminal Procedure 32(i)(3)(B) states a
sentencing court “must—for any disputed portion of the
presentence report or other controverted matter—rule on the
dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Any
findings of the district court under Rule 32(i)(3)(B) must be
“express and explicit.” United States v. Wijegoonaratna,
922 F.3d 983, 990 (9th Cir. 2019). Where, as here, a
defendant does not object to the district court’s compliance
with Rule 32 at sentencing, this court reviews for plain error.
Id. at 989. “Plain error is (1) error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Depue,
912 F.3d 1227, 1232 (9th Cir. 2019) (en banc) (quoting
United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.
2009)).
The district court made no explicit factual finding on
whether geometrical isomers exist. But even assuming the
district court erred, and that error was plain, the error was
harmless because there is no possibility that the court’s
resolution of Mr. Ceja’s factual objection would have
affected his sentence. Under the plain error standard, a
16 UNITED STATES V. CEJA
sentencing error prejudices a defendant’s substantial rights
“when there is a reasonable probability that he would have
received a different sentence had the district court not erred.”
United States v. Christensen, 732 F.3d 1094, 1102 (9th Cir.
2013). This court in Rodriguez-Gamboa held, as a matter of
law, that California’s definition of methamphetamine is a
categorical match to the definition under federal law based
on the scientific fact that geometrical isomers of
methamphetamine do not exist. See 972 F.3d at 1154 n.5.
The district court expressly stating that fact would not
change Mr. Ceja’s sentence.
AFFIRMED.