United States v. Carlos Herrera-Rivera

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2018
• Docket: 16-50450
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50450

Plaintiff-Appellee, D.C. No. 3:14-cr-00653-BEN-1 v.

CARLOS HERRERA-RIVERA, MEMORANDUM*

Defendant-Appellant.

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

Submitted November 15, 2018** Pasadena, California

Before: GOULD, PARKER,*** and MURGUIA, Circuit Judges.

Carlos Herrera-Rivera appeals his conviction for possession of

methamphetamine with intent to distribute in violation of 21 U.S.C. § 841.

* 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). *** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. This Court previously affirmed his conviction in United States v. Herrera-

Rivera, 832 F.3d 1166 (9th Cir. 2016). Although the Court affirmed his conviction,

it remanded to the district court for resentencing. Id. at 1174-75. The district court

resentenced Herrera-Rivera, and he now appeals again.

On appeal, he does not challenge his new sentence. Rather, he argues that,

under the Court’s decision in United States v. Orozco, 858 F.3d 1204 (9th Cir.

2017), the search and seizure leading to his arrest violated his Fourth Amendment

rights, requiring suppression of the evidence introduced at trial and the reversal of

his conviction.

Herrera-Rivera failed to raise a Fourth Amendment claim at any point in the

prior proceedings, and he is not entitled to do so now on his second appeal. Nor is

he entitled to an evidentiary hearing.

Our decision in Orozco is not the type of intervening authority that would

allow Herrera-Rivera to raise his Fourth Amendment claim for the first time on his

second appeal. See United States v. Van Alstyne, 584 F.3d 803, 812-13 (9th Cir.

2009) (allowing defendant to re-raise issue in second appeal where he actually

raised a related issue in a previous appeal). Orozco may well have provided

Herrera-Rivera with a stronger basis to argue for suppression, but it cannot excuse

his failure to raise a Fourth Amendment claim altogether in prior proceedings.

Accordingly, the appeal is DISMISSED.