United States v. Pedro Carrasco, Jr.

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 4 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30033

Plaintiff-Appellee, D.C. No.

1:16-cr-00041-SPW-1

v.

PEDRO CARRASCO, Jr., AKA Pedro MEMORANDUM* Carrasco,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted March 2, 2020 Portland, Oregon

Before: WOLLMAN,** FERNANDEZ, and PAEZ, Circuit Judges.

Pedro Carrasco appeals the district court’s denial of a hearing under Franks v. Delaware, 439 U.S. 154 (1978). He also argues that he received ineffective assistance of counsel. We affirm.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Roger L. Wollman, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

1. The district court did not err in denying Carrasco a Franks hearing. For the reasons the district court provided, the search warrant application contained sufficient information to establish probable cause. See United States v. Ruiz, 758 F.3d 1144, 1148–49 (9th Cir. 2014). Thus, even if the agent had provided additional details about the Confidential Source’s (CS’s) criminal history, removed the information about the CS’s February 6, 2016 phone call to Carrasco, and included co-defendant Luis Santana-Salgado’s statements about delivering methamphetamine to the truck stop in Laurel, Montana, there was sufficient evidence for the magistrate to find probable cause. We therefore conclude the agent’s omissions were not material.

2. We decline to review Carrasco’s claim for ineffective assistance of counsel on the existing record. We ordinarily refrain from evaluating such claims on direct appeal because the record rarely reveals why counsel acted as they did. See, e.g., United States v. Jeronimo, 398 F.3d 1149, 1155–56 (9th Cir. 2005), overruled on other grounds by United States v. Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). So too here: the present record contains little evidence about why Carrasco’s counsel did not file a second motion for reconsideration. We therefore cannot evaluate his counsel’s effectiveness on this record.

3

AFFIRMED.1

1 Our decision is without prejudice to raising an ineffective assistance of counsel claim on collateral review under 28 U.S.C. § 2255.