United States v. Adrian Zitlalpopoca-Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2020
• Docket: 18-50004
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50004

Plaintiff-Appellee, D.C. No. 3:08-cr-04304-BEN-1 v.

ADRIAN ZITLALPOPOCA-HERNANDEZ MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted January 24, 2020 Pasadena, California

Before: CLIFTON and LEE, Circuit Judges, and BLOCK,** District Judge.

Adrian Zitlalpopoca-Hernandez (“Zitlalpopoca”) challenges his sentence for

crimes relating to the sex trafficking of two young women. Now on his fourth

appeal, he argues that the district court engaged in numerous fatal errors. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. jurisdiction under 28 U.S.C. § 1291 and affirm.1

1. Factual background: Because the general facts of this case are known

to the parties and have been adequately explained in prior decisions, we will not

discuss them here. See United States v. Zitlalpopoca-Hernandez, 495 F. App’x 833

(9th Cir. 2012); United States v. Zitlalpopoca-Hernandez, 632 F. App’x 335 (9th

Cir. 2015); United States v. Zitlalpopoca-Hernandez, 709 F. App’x 428 (9th Cir.

2017). Specific to this appeal, the district court sentenced Zitlalpopoca under 18

U.S.C. §§ 1328, 2422(a) and 8 U.S.C. §§ 1324(a)(1)(A)(iii), (a)(2)(B)(ii) to two 100-

month consecutive sentences and fined him $250.

2. Vindictive sentencing: The district court did not engage in vindictive

sentencing at the fourth sentencing hearing. Zitlalpopoca asserts that he preserved

this argument below by filing a post-sentencing motion to correct sentence under

Federal Rule of Criminal Procedure 35(a), triggering de novo review. See United

States v. Curtin, 588 F.3d 993, 995–96 (9th Cir. 2009). The government counters

that we should review for plain error because Rule 35(a) does not preserve

substantive claims. See United States v. Allen, 954 F.2d 1160, 1168 (6th Cir. 1992).

But the argument is ultimately irrelevant as we find that the district court committed

1 We also deny Zitlalpopoca’s motion to strike a portion of the government’s brief, dkt. # 44. We note that the government’s response to Zitlalpopoca’s motion was untimely because it was filed 49 days late in violation of Federal Rule of Appellate Procedure 27(a)(3)(A).

2 no error, plain or otherwise.

Zitlalpopoca contends that the sentence is presumptively vindictive under

North Carolina v. Pearce, 395 U.S. 711, 725–26 (1969), because he received a

harsher sentence on remand by way of the additional $250 fine. See United States

v. Rapal, 146 F.3d 661, 663 (9th Cir. 1998). A presumption of vindictiveness may

be rebutted by “objective information in the record justifying the increased

sentence.” Id. (quoting Wasman v. United States, 468 U.S. 559, 565 (1984)). This

includes any new information presented to the court relating to pre-sentencing

conduct. See Texas v. McCullough, 475 U.S. 134, 141–43 (1986). Here, the record

shows that new information was introduced during Zitlalpopoca’s fourth sentencing

hearing, namely a victim impact statement and an admission by Zitlalpopoca that his

family operated an extensive prostitution ring in Mexico. These considerations

qualify as “objective information in the record” and are sufficient to rebut the Pearce

presumption.

3. Lack of objectivity: Zitlalpopoca’s due process right to a fair trial was

not tainted by a lack of objectivity on the part of the court. We review claims of

judicial bias de novo, Echavarria v. Filson, 896 F.3d 1118, 1131 (9th Cir. 2018),

and find none.

Zitlalpopoca argues that the district court harbored a fatal lack of objectivity

in several ways. First, Zitlalpopoca claims that the procedural history of this case

3 created a constitutionally intolerable risk of bias, see Echavarria, 896 F.3d at 1129,

because, he speculates, an “average judge” would have difficulty treating a

defendant fairly after three consecutive reversals. We reject this claim. “Certainly

it is not a rule of judicial administration that . . . a judge is disqualified from sitting

in a retrial because he was reversed on earlier rulings.” Withrow v. Larkin, 421 U.S.

35, 49 (1975) (quoting N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 236

(1947)). Even multiple reversals do not disqualify a judge for risk of bias or suffice

to “overcome the ‘presumption of honesty and integrity’ that we accord to the

determinations of a judge.” Crater v. Galaza, 491 F.3d 1119, 1132 (9th Cir. 2007)

(quoting Withrow, 421 U.S. at 47). Zitlalpopoca has not persuaded us that the

district judge displayed bias or that the circumstances and facts of this case overcame

the presumption of honesty and integrity.

Next, Zitlalpopoca asserts that the district court showed bias by comparing

Zitlalpopoca to defendants convicted of more serious crimes. This might also be

considered as a claim of procedural error by the district court, as might the claim of

alleged bias arising from the court’s erroneous belief that the victims engaged in

prostitution as a result of force or fear. This claim relates to a court’s alleged reliance

on clearly erroneous facts at sentencing. See United States v. Burgos-Ortega, 777

F.3d 1047, 1056 (9th Cir. 2015). We conclude, however, that the findings of the

district court were not clearly erroneous.

4 Finally, Zitlalpopoca argues that the district court lacked objectivity by

expressing a deep-seated antagonism toward Zitlalpopoca in several ways. But the

district court permissibly discounted the value of Zitlalpopoca’s testimony relating

to his rehabilitation, see White Glove Building Maintenance, Inc. v. Brennan, 518

F.2d 1271, 1274 (9th Cir. 1975), and did not become “embroiled” in the controversy,

see Mayberry v. Pennsylvania, 400 U.S. 455, 465–66 (1971).

4. Procedural error: The district court did not commit procedural error.

This court reviews a district court’s factual findings at sentencing for clear error and

its application of the facts to the law for abuse of discretion. See United States v.

Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

The court did not abuse its discretion by its choice of comparator cases; 18

U.S.C. § 3553(a)(6) only requires that a court consider cases involving “similar

conduct,” as opposed to identical conduct or charges.2 Furthermore, it was not an

abuse of discretion to sentence Zitlalpopoca to two 100-month consecutive terms.

See 18 U.S.C. § 3584; see also Setser v. United States, 566 U.S. 231, 236 (2012)

(noting that judges “have long been understood to have discretion to select whether

2 Zitlalpopoca asserts that comparator cases must involve identical conduct by the defendant, citing language from United States v. Monroe, 943 F.2d 1007, 1017 (9th Cir. 1991), United States v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir. 2000) (en banc), and United States v. Caperna, 251 F.3d 827, 831 (9th Cir. 2001). But his reliance is misplaced. These cases queried whether a court may equalize sentences among co-defendants or co-conspirators who have been convicted of committing different offenses.

5 the sentences they impose will run concurrently or consecutively with respect to

other sentences that they impose”). Finally, the district court adequately explained

its reasons for varying from the Guidelines.

5. Substantive unreasonableness: Zitlalpopoca’s sentence is not

substantively unreasonable. Claims of substantive unreasonableness are reviewed

for an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The

district court did not abuse its discretion by considering the victims’ ages during the

period of pre-indictment prostitution, or the severity of the violence Zitlalpopoca

inflicted on them. See 18 U.S.C. § 3661.

AFFIRMED.