United States v. Ramon Delgado ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50397
Plaintiff-Appellee, D.C. No.
3:18-cr-01005-LAB-1
v.
RAMON DELGADO, AKA Ramon MEMORANDUM*
Delgado-Pina,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 13, 2019
Pasadena, California
Before: KELLY,** PAEZ, and BADE, Circuit Judges.
Following a jury trial, Ramon Delgado was convicted of a single count of
knowingly making a materially false statement under 18 U.S.C. § 1001(a). He was
sentenced to twenty-four months’ imprisonment and three years’ supervised
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
release. Delgado appeals both his conviction and his sentence. We have
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
I
During his employment as a United States Border Patrol agent, Delgado
completed a mandatory background investigation to renew his security clearance.
That investigation posed the following question to Delgado: have you had “close
and/or continuing contact with a foreign national within the last seven (7) years
with whom you, or your spouse, or cohabitant are bound by affection, influence,
common interests, and/or obligation.” Delgado identified two relatives and
confirmed that he had no additional relationships to disclose. A federal grand jury
subsequently indicted Delgado for two counts of knowingly making a materially
false statement under 18 U.S.C. § 1001.1
At trial, the government introduced evidence of an undisclosed, personal and
ongoing relationship between Delgado and two Mexican nationals, each of whom
was engaged in international drug trafficking. Delgado does not dispute that the
government’s evidence was sufficient to establish a relationship between him and
these individuals. Instead, he contends that his failure to disclose these
relationships cannot sustain a conviction as a matter of law because the question
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The jury acquitted Delgado of the second count, which did not pertain to a
statement made in connection with his background investigation.
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posed to him was fundamentally ambiguous. We review for plain error because
Delgado failed to raise this argument prior to his conviction. See United States v.
Yijun Zhou, 838 F.3d 1007, 1011–12 (9th Cir. 2016).
The mere presence “of some ambiguity in a falsely answered question” does
not require this court to set aside a conviction for perjury or for providing a false
statement. United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003) (per
curiam). “It is for the jury to decide in such cases which construction the
defendant placed on a question.” Id. But a jury may not convict a defendant for
such an offense, as a matter of law, when a question is “fundamentally
ambiguous.” Id. “A question is fundamentally ambiguous when ‘men of ordinary
intelligence’ cannot arrive at a mutual understanding of its meaning.” Id. (quoting
United States v. Boone, 951 F.2d 1526, 1534 (9th Cir. 1991)).
We find nothing “fundamentally ambiguous” about the question posed to
Delgado, particularly when considering the context of the inquiry, the nature of
Delgado’s job, and the follow-up questions posed to him. See id. at 1079. To the
extent the question contained some ambiguity, the district court properly permitted
the jury to determine whether Delgado understood the question and whether, as
understood, he knowingly provided a false answer. See United States v. McKenna,
327 F.3d 830, 841 (9th Cir. 2003). Thus, the district court did not err by failing to
dismiss the indictment.
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II
Next, Delgado argues that his twenty-four month sentence is substantively
unreasonable. Although Delgado’s sentence is within the statutory maximum for
such a violation, see 18 U.S.C. § 1001(a), his sentence is above the recommended
Sentencing Guidelines range. Delgado argues that, in imposing an above-
Guidelines sentence, the district court impermissibly relied on evidence of his
uncharged conduct that was not presented to the jury and that was not “relevant
conduct” to his conviction.
“A defendant has no right to a Guidelines sentence,” United States v.
Hilgers, 560 F.3d 944, 947 (9th Cir. 2009), and we do not automatically “presume
that a non-Guidelines sentence is un reasonable,” United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). A sentencing court has discretion “to ‘conduct
an inquiry broad in scope, largely unlimited either as to the kind of information [it]
may consider, or the source from which it may come.’” Pepper v. United States,
562 U.S. 476, 489 (2011) (quoting United States v. Tucker, 404 U.S. 443, 446
(1972)).
We reject Delgado’s argument that the district court abused its discretion by
considering his uncharged conduct that Delgado asserts was not “relevant conduct”
to his offense. This factor, which a district court uses to determine the Sentencing
Guidelines range, see U.S.S.G. § 1B1.3(a)(1)(A), is inapplicable here because the
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district court did not impose a Guidelines sentence.2 Delgado’s above-Guidelines
sentence is substantively reasonable in light of the 18 U.S.C. § 3553 factors and the
totality of the circumstances, including the seriousness of Delgado’s offense and
the need for deterrence. See Gall v. United States, 552 U.S. 38, 51 (2007). Thus,
the district court did not abuse its discretion in imposing Delgado’s sentence.
AFFIRMED.
2
Further, Delgado does not contend the district court committed procedural error
by miscalculating the Sentencing Guidelines range. See Carty, 520 F.3d at 991.
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