United States v. Salvador Ojeda-Amarillas ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50195
Plaintiff-Appellee, D.C. No.
3:07-cr-01408-WQH-15
v.
SALVADOR OJEDA-AMARILLAS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted April 1, 2020**
Pasadena, California
Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.
Following a jury trial, Salvador Ojeda-Amarillas was convicted of
conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952, 960,
963, and conspiracy to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), 846. He was sentenced to 240 months of imprisonment, to be
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
followed by five years of supervised release. Ojeda now appeals the district court’s
pretrial order denying his motion to suppress and challenges his sentence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. An application for a wiretap order must explain “whether or not other
investigative procedures have been tried and failed or why they reasonably appear
to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(1)(c),
and the order may be issued only if a judge determines that such procedures have
been unsuccessful, are unlikely to succeed, or are too dangerous to attempt, id.§ 2518(3)(c). We review de novo whether the application meets the requirements
of section 2518(1)(c), and we review for abuse of discretion the issuing court’s
finding that the wiretap was necessary under section 2518(3)(c). United States v.
Rodriguez, 851 F.3d 931, 937 (9th Cir. 2017).
Ojeda argues that the July 2006 wiretap application did not establish that
normal investigative procedures were tried and failed, were unlikely to succeed, or
were too dangerous as to him, specifically. That argument is misplaced because
“the necessity requirement is directed to the objective of the investigation as a
whole, and not to any particular person.” United States v. Reed, 575 F.3d 900, 911
(9th Cir. 2009). Moreover, Ojeda’s identity was not even ascertained until August
2006. See id. (“[T]he government may seek a wiretap authorization in order to
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discover the identities of suspected co-conspirators.”) (quoting United States v.
Homick, 964 F.2d 899, 904 (9th Cir. 1992)).
Ojeda also argues that traditional investigative techniques were working, and
that the investigators were simply too impatient to wait for the resulting
information. But the application explained that even after conducting an analysis of
phone records and subscriber information, and performing database searches to
identify crossovers with other investigations, investigators had obtained “no
information about communication content” and were not even able to “state with
certainty who participated in a conversation.” In addition, the potential success of
one technique does not “extinguish[] the need for [a] wiretap,” United States v.
Decoud, 456 F.3d 996, 1007 (9th Cir. 2006), particularly when the government
seeks to identify members of a conspiracy, United States v. McGuire, 307 F.3d
1192, 1199 (9th Cir. 2002). Thus, the issuing court did not abuse its discretion in
determining that the necessity requirements for the July 2006 application were
satisfied.
Ojeda also challenges eight subsequent wiretap applications, but he failed to
present those applications to the district court in connection with his suppression
motion. His challenge is therefore waived, and we decline to address it. See United
States v. Ortiz, 776 F.3d 1042, 1044 n.3 (9th Cir. 2015); see also United States v.
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Elias, 921 F.2d 870, 874 (9th Cir. 1990) (explaining that documents “not presented
to the district court are not part of the record on appeal”).
2. We review the district court’s application of the Sentencing
Guidelines for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167,
1170 (9th Cir. 2017) (en banc). Ojeda argues that the district court abused its
discretion in applying the two-level firearm enhancement, U.S.S.G. § 2D1.1(b)(1),
because, he says, there was “no nexus between the firearms, the offense conduct,
and Mr. Ojeda’s home.” The factual record refutes that argument. Agents found
three firearms in Ojeda’s home at the time of his arrest, one of which was within
reach of Ojeda’s bed. They also found ammunition and a digital scale with
methamphetamine residue on it.
Nor did the district court abuse its discretion in applying the four-level
enhancement for Ojeda’s role as an “organizer or leader” of the criminal activity.
U.S.S.G. § 3B1.1(a). His role as a broker was analogous to the defendant’s role in
United States v. Avila, 905 F.2d 295 (9th Cir. 1990), in which we affirmed the
application of the enhancement. Id. at 298–99.
3. We review the substantive reasonableness of Ojeda’s sentence for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The district
court considered the required factors, including Ojeda’s age, and reasonably
determined that Ojeda’s within-Guidelines sentence was “sufficient, but not greater
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than necessary,” to accomplish the statutory sentencing goals. United States v.
Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)).
Ojeda objects to the district court’s consideration of a potential sentencing
disparity between Ojeda and a particular codefendant, but the avoidance of such
disparities is one of the statutory factors. See 18 U.S.C. § 3553(a)(6).
AFFIRMED.
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