United States v. Claudia Bastidas , 658 F. App'x 878 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 05 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-50242
Plaintiff-Appellee, D.C. No.
2:14-cr-00508-SVW-3
v.
CLAUDIA ARACELI BASTIDAS, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-50250
Plaintiff-Appellee, D.C. No.
2:14-cr-00508-SVW-1
v.
JORGE ALEJANDRO GARCIA-
RAMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued as to 15-50242 Submitted as to 15-50250 July 6, 2016**
Pasadena, California
Before: VANASKIE,*** MURGUIA, and WATFORD, Circuit Judges.
Claudia Bastidas and Jorge Garcia-Ramirez appeal their convictions and
sentences related to a controlled methamphetamine transaction. Bastidas raises
two claims regarding her jury instructions, and also challenges the district court’s
finding that she was ineligible for “safety valve” relief from her mandatory
minimum sentence. Garcia-Ramirez presents no claims on appeal. This court has
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part,
vacate Bastidas’s sentence, and remand her case for re-sentencing.
1. This court has granted Garcia-Ramirez’s counsel’s motion to withdraw
under Anders v. California, 386 U.S. 738 (1967). After performing an independent
review of the record, we see no error in Garcia-Ramirez’s convictions or sentence.
Garcia-Ramirez’s judgment is therefore affirmed. See United States v. Bennett,
219 F.3d 1117, 1126 (9th Cir. 2000).
2. The district court did not plainly err by failing to sua sponte provide an
instruction on simple possession at Bastidas’s trial. A defendant’s failure to
**
The panel unanimously concludes that Garcia-Ramirez’s appeal is
suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the Third Circuit, sitting by designation.
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request a lesser included offense instruction may be considered a strategic choice
to seek a complete acquittal. United States v. Boone, 951 F.2d 1526, 1542 (9th Cir.
1991). Although we have held that a lesser included offense instruction must be
provided in homicide cases regardless of whether it was requested, see, e.g., United
States v. Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000), in this non-homicide
case, the district court’s failure to provide an unrequested lesser included offense
instruction was not plain error, see Boone, 951 F.2d at 1542.
3. The district court did not plainly err by failing to sua sponte provide an
instruction on specific unanimity regarding the moment when Bastidas possessed
the methamphetamine with the intent to distribute. The jury was not required to
reach unanimity on this issue. See United States v. Mancuso, 718 F.3d 780, 793
(9th Cir. 2013) (“It does not matter that different jurors may have found different
pieces of testimony credible, as long as the jury is unanimous on the bottom line
conclusion that Mancuso was guilty of [possession with the intent to distribute].”).
Because there was no error in Bastidas’s jury instructions, her conviction under 21
U.S.C. § 841 for possession of methamphetamine with the intent to distribute is
affirmed.
4. Bastidas’s conviction carries a five-year mandatory minimum unless she
demonstrates eligibility for the safety valve by, among other things, “truthfully
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provid[ing] to the Government all information and evidence [she] has concerning
the offense.” 18 U.S.C. § 3553(f)(5); U.S. Sentencing Guidelines Manual § 5C1.2
(U.S. Sentencing Comm’n 2014); see also 21 U.S.C. § 841(b)(1)(B)(viii)
(establishing the mandatory minimum). Because Bastidas claimed that she was
eligible for safety valve relief in the district court, we decline to apply plain error
review to her safety valve claim on appeal. See United States v. Lloyd, 807 F.3d
1128, 1174–75 (9th Cir. 2015) (“[I]t is claims that are deemed waived or forfeited,
not arguments.” (citation omitted)). We review the district court’s interpretation of
the sentencing statute and Guidelines de novo. United States v.
Gamboa-Cardenas, 508 F.3d 491, 495 (9th Cir. 2007).
A district court “must provide its reasons for applying or declining to apply
the safety-valve provision.” United States v. Rangel-Guzman, 752 F.3d 1222,
1226 (9th Cir. 2014). Where a defendant has truthfully provided all information to
the government, her later recantation does not render her ineligible for the safety
valve. United States v. Shrestha, 86 F.3d 935, 940 (9th Cir. 1996). Here, the
district court failed to determine whether Bastidas’s post-arrest statement qualified
her for the safety valve. Also, the district court’s statement that Bastidas was not
eligible for the safety valve because she “was not truthful with the government and
was not truthful at trial” suggests that the district court considered her recantation
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at trial in denying safety valve relief. To the extent the district court considered
Bastidas’s “denial of guilty knowledge at trial” as a reason to find her ineligible for
the safety valve, the court erred as a matter of law. See Shrestha, 86 F.3d at 940
(deeming such a denial “irrelevant” to the safety valve analysis where the
defendant has otherwise provided truthful information); see also United States v.
Mejia-Pimental, 477 F.3d 1100, 1108 (9th Cir. 2007) (holding that the district
court erred as a matter of law by denying safety valve relief on improper grounds).
We therefore vacate Bastidas’s sentence and remand for the district court to
redetermine Bastidas’s eligibility for the safety valve, taking into account her post-
arrest statement and giving no weight to whether she recanted that statement at
trial.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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