United States v. Salvador Ojeda-Amarillas

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 13, 2020
• Docket: 18-50195
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50195

Plaintiff-Appellee, D.C. No. 3:07-cr-01408-WQH-15 v.

SALVADOR OJEDA-AMARILLAS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Submitted April 1, 2020** Pasadena, California

Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.

Following a jury trial, Salvador Ojeda-Amarillas was convicted of

conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952, 960,

963, and conspiracy to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 846. He was sentenced to 240 months of imprisonment, to be

* 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). followed by five years of supervised release. Ojeda now appeals the district court’s

pretrial order denying his motion to suppress and challenges his sentence. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. An application for a wiretap order must explain “whether or not other

investigative procedures have been tried and failed or why they reasonably appear

to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(1)(c),

and the order may be issued only if a judge determines that such procedures have

been unsuccessful, are unlikely to succeed, or are too dangerous to attempt, id.

§ 2518(3)(c). We review de novo whether the application meets the requirements

of section 2518(1)(c), and we review for abuse of discretion the issuing court’s

finding that the wiretap was necessary under section 2518(3)(c). United States v.

Rodriguez, 851 F.3d 931, 937 (9th Cir. 2017).

Ojeda argues that the July 2006 wiretap application did not establish that

normal investigative procedures were tried and failed, were unlikely to succeed, or

were too dangerous as to him, specifically. That argument is misplaced because

“the necessity requirement is directed to the objective of the investigation as a

whole, and not to any particular person.” United States v. Reed, 575 F.3d 900, 911

(9th Cir. 2009). Moreover, Ojeda’s identity was not even ascertained until August

2006. See id. (“[T]he government may seek a wiretap authorization in order to

2 discover the identities of suspected co-conspirators.”) (quoting United States v.

Homick, 964 F.2d 899, 904 (9th Cir. 1992)).

Ojeda also argues that traditional investigative techniques were working, and

that the investigators were simply too impatient to wait for the resulting

information. But the application explained that even after conducting an analysis of

phone records and subscriber information, and performing database searches to

identify crossovers with other investigations, investigators had obtained “no

information about communication content” and were not even able to “state with

certainty who participated in a conversation.” In addition, the potential success of

one technique does not “extinguish[] the need for [a] wiretap,” United States v.

Decoud, 456 F.3d 996, 1007 (9th Cir. 2006), particularly when the government

seeks to identify members of a conspiracy, United States v. McGuire, 307 F.3d

1192, 1199 (9th Cir. 2002). Thus, the issuing court did not abuse its discretion in

determining that the necessity requirements for the July 2006 application were

satisfied.

Ojeda also challenges eight subsequent wiretap applications, but he failed to

present those applications to the district court in connection with his suppression

motion. His challenge is therefore waived, and we decline to address it. See United

States v. Ortiz, 776 F.3d 1042, 1044 n.3 (9th Cir. 2015); see also United States v.

3 Elias, 921 F.2d 870, 874 (9th Cir. 1990) (explaining that documents “not presented

to the district court are not part of the record on appeal”).

2. We review the district court’s application of the Sentencing

Guidelines for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d 1167,

1170 (9th Cir. 2017) (en banc). Ojeda argues that the district court abused its

discretion in applying the two-level firearm enhancement, U.S.S.G. § 2D1.1(b)(1),

because, he says, there was “no nexus between the firearms, the offense conduct,

and Mr. Ojeda’s home.” The factual record refutes that argument. Agents found

three firearms in Ojeda’s home at the time of his arrest, one of which was within

reach of Ojeda’s bed. They also found ammunition and a digital scale with

methamphetamine residue on it.

Nor did the district court abuse its discretion in applying the four-level

enhancement for Ojeda’s role as an “organizer or leader” of the criminal activity.

U.S.S.G. § 3B1.1(a). His role as a broker was analogous to the defendant’s role in

United States v. Avila, 905 F.2d 295 (9th Cir. 1990), in which we affirmed the

application of the enhancement. Id. at 298–99.

3. We review the substantive reasonableness of Ojeda’s sentence for

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

court considered the required factors, including Ojeda’s age, and reasonably

determined that Ojeda’s within-Guidelines sentence was “sufficient, but not greater

4 than necessary,” to accomplish the statutory sentencing goals. United States v.

Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009) (quoting 18 U.S.C. § 3553(a)).

Ojeda objects to the district court’s consideration of a potential sentencing

disparity between Ojeda and a particular codefendant, but the avoidance of such

disparities is one of the statutory factors. See 18 U.S.C. § 3553(a)(6).

AFFIRMED.