United States v. Pedro Carrasco, Jr. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30033
Plaintiff-Appellee, D.C. No.
1:16-cr-00041-SPW-1
v.
PEDRO CARRASCO, Jr., AKA Pedro MEMORANDUM*
Carrasco,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted March 2, 2020
Portland, Oregon
Before: WOLLMAN,** FERNANDEZ, and PAEZ, Circuit Judges.
Pedro Carrasco appeals the district court’s denial of a hearing under Franks
v. Delaware, 439 U.S. 154 (1978). He also argues that he received ineffective
assistance of counsel. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger L. Wollman, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
1. The district court did not err in denying Carrasco a Franks hearing. For
the reasons the district court provided, the search warrant application contained
sufficient information to establish probable cause. See United States v. Ruiz, 758
F.3d 1144, 1148–49 (9th Cir. 2014). Thus, even if the agent had provided
additional details about the Confidential Source’s (CS’s) criminal history, removed
the information about the CS’s February 6, 2016 phone call to Carrasco, and
included co-defendant Luis Santana-Salgado’s statements about delivering
methamphetamine to the truck stop in Laurel, Montana, there was sufficient
evidence for the magistrate to find probable cause. We therefore conclude the
agent’s omissions were not material.
2. We decline to review Carrasco’s claim for ineffective assistance of
counsel on the existing record. We ordinarily refrain from evaluating such claims
on direct appeal because the record rarely reveals why counsel acted as they did.
See, e.g., United States v. Jeronimo, 398 F.3d 1149, 1155–56 (9th Cir. 2005),
overruled on other grounds by United States v. Castillo, 496 F.3d 947, 957 (9th
Cir. 2007) (en banc). So too here: the present record contains little evidence about
why Carrasco’s counsel did not file a second motion for reconsideration. We
therefore cannot evaluate his counsel’s effectiveness on this record.
2
AFFIRMED.1
1
Our decision is without prejudice to raising an ineffective assistance of counsel
claim on collateral review under 28 U.S.C. § 2255.
3