United States v. Fausto Alday-Arvizo , 441 F. App'x 440 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10252
No. 10-10253
Plaintiff - Appellee,
v. D.C. No. 4:09-cr-50163-JMR
D.C. No. 4:09-cr-01219-JMR
FAUSTO ALDAY-ARVIZO, a.k.a.
FAUSTO ALDAY,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
**
Submitted June 15, 2011
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Fausto Alday-Arvizo appeals from the 57-month sentence imposed
following his guilty-plea conviction for reentry after deportation, in violation of
8 U.S.C. § 1326, and the 6-month sentence imposed upon revocation of his
supervised release in connection with a 2003 drug-trafficking conviction. We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Alday-Arvizo contends that his due process rights under Brady v. Maryland,
373 U.S. 83 (1963), were violated by the government’s failure to disclose
information relating to his work with the Drug Enforcement Administration
(“DEA”) as a confidential informant (“CI”). The record reflects that the issue was
discussed with the district court and that the government represented to the court
that the DEA ordinarily will neither confirm nor deny an individual’s work as a CI.
Although “the DEA cannot undermine Brady by keeping exculpatory evidence out
of the prosecutor's hands,” United States v. Blanco, 392 F.3d 382, 394 (9th Cir.
2004) (internal quotations omitted), the claim fails because Alday-Arvizo
“possessed the salient facts regarding the existence of the records that he claims
were withheld” but never invoked court process by subpoenaing the DEA
materials, see Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006).
Alday-Arvizo also contends that the district court could have relied upon the
statements in the uncontroverted presentence report regarding his alleged
cooperation with the DEA to mitigate his sentence. The record reflects that the
district court did consider Alday-Arvizo’s contentions of cooperation. Nothing in
either Fed. R. Crim. P. 32 or United States v. Romero-Rendon, 220 F.3d 1159 (9th
Cir. 2000), required the court to do more.
AFFIRMED.