United States v. Luis Dimas , 532 F. App'x 746 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10216
Plaintiff - Appellee, D.C. No. 5:09-CR-00848-DLJ-3
v.
MEMORANDUM*
LUIS ANGEL DIMAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Submitted June 13, 2013**
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and VANCE, Chief
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2)
***
The Honorable Sarah S. Vance, Chief District Judge for the United
States District Court for the Eastern District of Louisiana, sitting by designation.
1
Luis Angel Dimas appeals his conviction and sentence for one count of
conspiracy to distribute methamphetamine and one count of possession with intent
to distribute methamphetamine. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I
Dimas challenges the admission of Deputy Sheriff Cary Colla's expert
testimony that a trained drug-sniffing dog detected the presence of narcotics in
Dimas's vehicle. Dimas argues that Colla's testimony was unreliable and that his
comments about lingering narcotics odors went beyond the scope of his expertise.
We review a district court's decision to admit expert testimony for an abuse of
discretion. United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000).
Deputy Colla's experience and training provided a reliable foundation for his
testimony about narcotics odors and the dog's search of Dimas's vehicle. Both
Colla and the dog were certified in drug detection, and they trained together on a
monthly basis. The dog was 100% accurate in his testing. Further, Colla attended
conferences and classes relating to his duties as a drug dog handler. Accordingly,
the district court did not abuse its discretion by admitting Colla's testimony. See
Florida v. Harris, 133 S. Ct. 1050, 1057 (2013).
2
Dimas also challenges the admission of DEA Special Agent Hilda Rubino's
expert testimony as improper "drug courier profile" evidence. See United States v.
Lui, 941 F.2d 844, 847 (9th Cir. 1991) (noting that drug courier profile evidence
may not be used as "substantive evidence of a defendant's innocence or guilt") .
Rubino testified about the general practices of drug traffickers and provided an
opinion that a notebook was a "pay ledger" commonly used in the drug trade.
Rubino's testimony helped explain Dimas's modus operandi by describing how
certain words and actions were consistent with the common practices of drug
traffickers. See United States v. Freeman, 498 F.3d 893, 906-07 (9th Cir. 2007).
"[G]overnment agents or similar persons may testify as to the general practices of
criminals to establish the defendants' modus operandi." United States v. Gil, 58
F.3d 1414, 1422 (9th Cir. 1995) (quoting United States v. Johnson, 735 F.2d 1200,
1202 (9th Cir. 1984)). The district court therefore did not abuse its discretion by
admitting Rubino's testimony.
II
Dimas attacks his sentence as unlawful on the grounds that (a) the district
court relied improperly on the drug quantity reported by the DEA when there was
conflicting evidence of a lower quantity, (b) the sentence was unreasonable
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because his co-conspirators received relatively lenient sentences, and (c) the
sentence violated the Eighth Amendment to the United States Constitution.
We review the district court's interpretation of the Guidelines de novo and its
factual findings for clear error. United States v. Biao Huang, 687 F.3d 1197, 1202
(9th Cir. 2012). If the district court correctly calculated the Guidelines range, we
review the sentence for reasonableness under the abuse of discretion standard.
United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc).
A
The district court did not err in relying on the drug quantity reported by the
DEA. The district court found that the DEA agent's testimony about the sample
size, homogeneity, and uncertainty values made the DEA results more credible
than the other results. The DEA agent's testimony fully supported the district
court's determination. Accordingly, the district court's finding on drug quantity was
not clearly erroneous, and the district court correctly applied the higher Guidelines
range based on the DEA results. United States v. Kilby, 443 F.3d 1135, 1140-42
(9th Cir. 2006).
B
Dimas argues that his below-Guidelines sentence of 200 months was
unreasonable considering that his co-conspirators received 108 months
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imprisonment. Dimas's situation differed materially from that of his co-
conspirators because his co-conspirators accepted responsibility, cooperated with
the Government, and qualified for safety-valve relief. "[A] sentencing disparity
based on cooperation is not unreasonable." United States v. Carter, 560 F.3d 1107,
1121 (9th Cir. 2009). The district court considered the 18 U.S.C. § 3553(a)
sentencing factors and varied downward from the Guidelines range. The court
balanced defendant's failure to accept responsibility with his lack of criminal
history. It found that 235 months was too high based on defendant's total conduct.
The district court made an individualized determination based on Dimas's
characteristics and the characteristics of the offense. The sentence was reasonable
under the totality of the circumstances. See United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc).
C
Finally, Dimas argues that his below-Guidelines sentence violates the Eighth
Amendment. We review de novo whether a sentence violates the Eighth
Amendment. United States v. Meiners, 485 F.3d 1211, 1212-13 (9th Cir. 2007)
(per curiam) (citing United States v. Fernandez, 388 F.3d 1199, 1258 (9th Cir.
2004)). "Generally, as long as the sentence imposed on a defendant does not
exceed statutory limits, this court will not overturn it on Eighth Amendment
5
grounds." United States v. Albino, 432 F.3d 937, 938 (9th Cir. 2005) (per curiam)
(quoting United States v. Parker, 241 F.3d 1114, 1117 (9th Cir. 2001)). Dimas's
sentence was below the Guidelines range and well below the statutory maximum
for his offenses. Dimas fails on a threshold level to show that his sentence is
grossly disproportional to the crimes. Meiners, 485 F.3d at 1213.
AFFIRMED.
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