United States v. Cuevas

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 12, 2024
• Docket: 23-1668
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1668 D.C. No. Plaintiff - Appellee, 3:22-cr-00308-TWR-1 v. MEMORANDUM* FIDENCIO ARELLANO CUEVAS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Submitted September 10, 2024** Pasadena, California

Before: IKUTA and FRIEDLAND, Circuit Judges, and HSU, District Judge.***

Fidencio Arellano Cuevas appeals his convictions and sentence for

conspiracy to import and importation of methamphetamine in violation of 21

* 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 Wesley L. Hsu, United States District Judge for the Central District of California, sitting by designation. U.S.C. §§ 952, 960, and 963. We affirm.

The district court did not clearly err in concluding that Cuevas consented to

the search of his cell phone under the totality of the circumstances. United States

v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000); Schneckloth v. Bustamente, 412

U.S. 218, 222 (1973). Even assuming Cuevas withdrew his initial consent to the

search of the phone when he subsequently invoked his right to counsel, Cuevas

later consented again, and there was no clear error in the district court’s findings

that Cuevas appeared “very willing to sign the” consent form at that point, the

officers “didn’t have their guns raised,” and overall, it was not “an intimidating

atmosphere.” See United States v. Rodriguez-Preciado, 399 F.3d 1118, 1126 (9th

Cir. 2005).

Cuevas’s consent did not amount to a violation of the Fifth Amendment

right against self-incrimination. United States v. Lemon, 550 F.2d 467, 472

(9th Cir. 1977) (“A consent to a search is not the type of incriminating statement

toward which the Fifth Amendment is directed.”); United States v. Henley, 984

F.2d 1040, 1042–43 (9th Cir. 1993) (same); see also United States v. Patane, 542

U.S. 630, 633–34 (2004) (plurality).

Cuevas cursorily references the district court’s denial of his motion in limine

to exclude the cell phone evidence as irrelevant and hearsay. To the extent he

argues this was error, we decline to address this argument because it is

2 23-1668 “inadequately presented, and therefore waived.” See James River Ins. Co. v.

Hebert Schenk, P.C., 523 F.3d 915, 920 n.1 (9th Cir. 2008).

Cuevas’s sentence was substantively reasonable; it was not an abuse of

discretion to weigh the large quantity and type of drugs he attempted to import

against his health and lack of criminal history in imposing a significantly below-

Guidelines sentence of 96 months. United States v. Wilson, 8 F.4th 970, 977

(9th Cir. 2021); United States v. Carty, 520 F.3d 984, 995 (9th Cir. 2008) (en

banc).

AFFIRMED.

3 23-1668