United States v. Burgara

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 2, 2025
• Docket: 23-581
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 2 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-581 D.C. No. Plaintiff - Appellee, 2:18-cr-00221-JVS-1 v. MEMORANDUM* ANDRES BURGARA, AKA Saraisa Burgara, AKA Tigre, AKA Andres Leonardo Vazque Burgara, AKA Herman Sandoval, AKA Saraisa Lemus Burgara, AKA Leonardo Bugara, AKA Roberto Martinez, AKA Andres Burgara- Campos,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted October 25, 2024 Pasadena, California

Before: IKUTA and BRESS, Circuit Judges, and BASTIAN, Chief District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stanley A. Bastian, Chief United States District Judge for the Eastern District of Washington, sitting by designation. Defendant Andres Burgara appeals his convictions and sentence for one

count of possession with intent to distribute methamphetamine (Count 1), two

counts of possession with intent to distribute cocaine (Counts 2 and 7), and one

count of possession with intent to distribute marijuana (Count 5) in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A), (C), (D); three counts of felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) (Counts 4, 6, and 9); and two counts

of possession of a firearm during and in relation to, or in furtherance of, drug

trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Counts 3 and 8).

Prior to trial, Burgara filed unsuccessful pretrial motions, including motions

to suppress, in which he challenged the wiretap and subsequent searches, and a

motion to compel to obtain the identity of the confidential sources used in the

investigation. He also asked the trial court to suppress evidence found in his car

during a traffic stop and at his house during the execution of a search warrant. At

trial, Burgara conceded that he committed the drug and gun possession offenses.

Thus, the sole issue at trial was, with respect to the § 924(c) charges, whether

Burgara carried the firearms during and in relation to the drug-trafficking crimes or

possessed them in furtherance of the drug-trafficking crimes.

After the Government rested and again after the jury rendered its verdict,

Burgara unsuccessfully moved for judgment of acquittal on the two contested

counts and in the alternative, a new trial. The district court denied the motions and

2 23-581 sentenced Burgara to 271 months’ imprisonment and five years’ supervised

release.

Burgara appeals the denial of his suppression motions, asks for a new trial,

and appeals his sentence. He argues that: (1) the district court erred in denying his

motions to suppress because the wiretap of his cell phone was illegal and the

evidence obtained at the traffic stop was the fruit of the illegal electronic

surveillance and, even assuming the wiretap was lawful, the search of his car

independently violated the Fourth Amendment; (2) his trial was infected with

errors, including admission of the Government’s expert testimony about the

connection between drugs and guns, admission of hearsay from his wife in

violation of the Confrontation Clause, improper limits on his cross-examination of

a witness, repeated prosecutorial misconduct, and incorrect jury instructions; and

(3) his sentence must be vacated because he was convicted on multiplicitous

counts, the district court erred in applying a weapons enhancement, erred in

declining to apply a downward adjustment for acceptance of responsibility, and

exceeded the statutory maximums for four counts.

We have jurisdiction under 28 U.S.C. § 1291 and affirm Burgara’s

convictions and sentence, but with a limited remand to correct the judgment on

Counts 4, 5, 6, and 9.

1. The district court did not abuse its discretion in denying Burgara’s

3 23-581 motions to suppress information obtained from the wiretap and information

obtained through the search, as poisonous fruit of the wiretap. United States v.

Brone, 792 F.2d 1504, 1506 (9th Cir. 1986) (the district court’s decision that the

wiretap was necessary is reviewed for abuse of discretion). The wiretap satisfied

two of the three possible methods to demonstrate necessity for wiretap

surveillance, because the Government showed that other methods of surveillance

had been tried and were unlikely to succeed going forward. See United States v.

Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005) (noting the Government may

establish necessity for a wiretap by showing that traditional investigative

techniques “(1) have been tried and failed; (2) reasonably appear unlikely to

succeed if tried; or (3) are too dangerous to try”). Burgara’s assertions that the

Government merely transferred a statutory showing of necessity from one

application to another have no basis in the record. Consequently, the evidence of

the drugs and guns found in the car, house, and truck were not tainted by an illegal

wiretap. Regardless, the June 2017 wiretap was too attenuated from the March

2018 traffic stop, so any problems with the wiretap could not justify suppression of

evidence found during the stop.

Further, based on the totality of the circumstances, including previously

observed hand-to-hand transactions and Burgara’s behavior and demeanor during

the stop, the deputies had probable cause to search the Honda under the Fourth

4 23-581 Amendment’s automobile exception. Collins v. Virginia, 584 U.S. 586, 591 (2018)

(holding that under the Fourth Amendment’s automobile exception, officers may

search a vehicle without a warrant when there is probable cause of illegal activity).

Because the deputies had probable cause to search the car, we need not reach

Burgara’s remaining arguments based on his lack of consent and the community-

caretaking exception.

In addition, the district court did not abuse its discretion in denying

Burgara’s motion to compel disclosure of the identity of the confidential informant

because Burgara failed to make specific allegations that portions of the warrant

were false, or omitted material information, as necessary to compel the identity.

United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir. 1983).

2. Burgara’s assertions that he did not receive a fair trial are belied by the

record, given the strong evidence of his guilt presented at trial and his concessions

that he committed the drug and gun possession charges.

First, at trial, Burgara did not challenge that the Drug Enforcement Agency

(DEA) agent qualified as an expert under Rule 702 of the Federal Rules of

Evidence. He only challenged the timing of the supplemental testimony of the

agent, which was proffered on the eve of trial. Moreover, the agent’s testimony

was reliable based on his extensive field experience and knowledge of drug-

dealing operations. United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir.

5 23-581 1997) (noting that a DEA agent’s experience and training provides a basis for

reliable opinions about drug trafficking).

Second, although the admission of the hearsay testimony from Burgara’s

wife violated the Sixth Amendment’s Confrontation Clause, the Government has

shown the error was harmless beyond a reasonable doubt. United States v.

Bustamante, 687 F.3d 1190, 1195 (9th Cir. 2012). The statement was cumulative,

there was corroborating evidence from Burgara’s son’s testimony, and Burgara

conceded to committing seven of the nine charges. Also, Burgara admitted that the

truck, and the drugs and guns found in the truck’s secret compartment, belonged to

him, and he likewise admitted to installing the secret compartment.

Third, the district court did not abuse its discretion in limiting cross-

examination regarding alleged threats made to Burgara by the police, where the

only portion of Burgara’s statements that were played to the jury were made before

any alleged threats were given. Ortiz v. Yates, 704 F.3d 1026, 1035 (9th Cir. 2012)

(“Trial judges retain wide latitude insofar as the Confrontation Clause is concerned

to impose reasonable limits on such cross-examination based on concerns about,

among other things, harassment, prejudice, confusion of the issues, the witness

safety, or interrogation that is repetitive or only marginally relevant.”) (emphasis

and quotations omitted).

Fourth, with respect to Burgara’s claim of prosecutorial misconduct, the

6 23-581 Government presented ample evidence to support the verdict and any alleged

misconduct played a minor role in the trial. Accordingly, any prosecutorial

misconduct was not plain error. United States v. Flores, 802 F.3d 1028, 1040 (9th

Cir. 2015).

Fifth, we decline to review Burgara’s arguments regarding Jury Instruction

No. 27 pursuant to the invited error doctrine. United States v. Tuyet Thi-Bach

Nguyen, 565 F.3d 668, 676 (9th Cir. 2009). And although the district court erred in

defining “in furtherance” as “playing a role in the crime,” this error was harmless

because the evidence was strong that Burgara possessed the firearm in furtherance

of a drug trafficking crime, and there was nothing in the record from which the

jury could infer that he unknowingly or accidently stored the firearms with the

drugs. United States v. Thongsy, 577 F.3d 1036, 1043 (9th Cir. 2009).

Finally, given the strong evidence against Burgara, any alleged cumulative

error did not affect the trial. See Flores, 802 F.3d at 1042 (noting that if the

evidence against the defendant is strong, he is less likely to be prejudiced by the

effect of cumulative errors). Many of Burgara’s allegations do not reflect error, and

the few minor errors that may have occurred did not make his trial unfair.

3. Turning to the sentencing issues, Burgara has not shown that the district

court committed plain error in sentencing him to 271 months’ imprisonment,

although we remand for correction of the judgment to accurately reflect the

7 23-581 statutory maximum sentences for Counts 4, 5, 6 and 9, as the 151-month sentence

exceeded the statutory maximum for the felon in possession of a firearm offenses

and the marijuana possession offense.

Burgara argues that the district court erred in sentencing him on two separate

possession with intent to distribute cocaine charges (Counts 2 and 7), rather than

for a single violation of § 841(a). He also argues the district court erred in

sentencing him on three separate felon in possession of firearms charges (Counts 4,

6, and 9), rather than as a single violation of § 922(g)(1). Burgara further argues

that, because the two § 841(a) convictions for cocaine possession (Counts 2 and 7)

were multiplicitous, he could not be convicted of both Counts 3 and 8, which were

predicated on those charges. Because Burgara did not raise his multiplicity

challenges below, the standard of review is plain error. United States v. Ankeny,

502 F.3d 829, 838 (9th Cir. 2007).

For the drug charges, where separate caches of a controlled substance are

found in separate vehicles which are themselves found in different locations, it was

at the very least not plain error for Burgara to be charged and convicted of multiple

§ 841(a) offenses. See United States v. Privett, 443 F.2d 528, 531 (9th Cir. 1971).

And because the § 841(a) counts were properly charged as separate crimes, there

was sufficient evidence to convict Burgara on two separate § 924(c) counts. See

United States v. Andrews, 75 F.3d 552, 558 (9th Cir. 1996).

8 23-581 With respect to the firearms charges, “[g]uns that are acquired at different

times or stored in separate places permit separate punishment to be imposed for

each violation of § 922(g).” United States v. Keen, 104 F.3d 1111, 1118 n.11 (9th

Cir. 1996). Once again, at minimum, it is not plain error to conclude that when

different evidence shows that a defendant possessed each firearm that was acquired

or stored separately, each firearm can support a separate felon in possession

charge. United States v. Richards, 52 F.4th 879, 887 (9th Cir. 2022) (holding that

separate charges are permissible when the guns were “acquired at different times

or stored in separate places”). Here, the guns were stored in separate locations and

at least one firearm was acquired at a different time from the others. Thus, the

district court did not plainly err in considering each drug charge and each firearm

charge individually.

Next, the district court did not err in denying Burgara the acceptance of

responsibility adjustment under U.S.S.G. § 3E1.1(a)—especially considering that

Burgara proceeded to trial. United States v. Nielsen, 371 F.3d 574, 582 (9th Cir.

2004) (“The determination of the sentencing judge is entitled to great deference on

review because of the sentencing judge’s unique position to evaluate a defendant’s

acceptance of responsibility.”) (internal quotation mark omitted); see also United

States v. Gambino-Ruiz, 91 F.4th 981, 991 (9th Cir. 2024) (noting that a defendant

who goes to trial will receive this adjustment only in “rare situations”).

9 23-581 Additionally, the district court did not err in relying on the PSR to determine

Burgara’s criminal history. United States v. Marin-Cuevas, 147 F.3d 889, 894 (9th

Cir. 2009) (noting that failing to include the actual records in the report does not

disqualify the criminal behavior from counting in the criminal history review).

Burgara further argues the district court should not have imposed a two-level

enhancement under U.S.S.G. § 2D1.1(b)(1) for Burgara’s possession of a

dangerous weapon in connection with a drug offense. Because Burgara did not

object, we review for plain error. Given the language of § 2D1.1(b)(1), which

directs a two-level increase when “a dangerous weapon (including a firearm) was

possessed,” the district court would not have plainly erred in imposing a two-level

enhancement. But since we are already remanding for resentencing, the district

court may consider the issue anew during resentencing. The district court may also

specify in its revised sentence whether the addition of the two-level enhancement

would have made a difference to the overall sentence imposed.

Finally, the statutory maximum sentence for Counts 4, 6, and 9 is 120

months, 18 U.S.C. § 924(a)(2), and the statutory maximum sentence for Count 5 is

60 months, 21 U.S.C. § 841(b)(1)(D). The parties agree that the 151-month

sentences on these counts were imposed in error. The district court should correct

the judgment on these counts to reflect this.

AFFIRMED, with a limited remand to correct the judgment to accurately

10 23-581 reflect the statutory maximums. At resentencing, the district court may also

reconsider its imposition of the two-level enhancement under § 2D1.1(b)(1).1

1 We grant appellant’s motion for judicial notice. Dkt. 15.

11 23-581