United States v. Rodriguez, No. 15-50096 (9th Cir. 2017)
Annotate this CaseDefendant appealed his 600 month sentence and conviction for conspiracy to distribute methamphetamine, conspiracy to import methamphetamine, and distribution of methamphetamine. The court concluded that district courts should apply the Ninth Circuit's two-step approach when considering a motion to suppress wiretap evidence where the reviewing district court judge must review de novo whether the application for a wiretap contains a full and complete statement as to 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. If the wiretap application meets these requirements of 18 U.S.C. 2518(1)(c), then the district court judge should review for abuse of discretion the issuing judge's conclusion that the wiretap was necessary. In this case, the district court judge erred when it applied an abuse of discretion standard to both determinations made by the issuing judge. Based on a de novo review of both affidavits, the court concluded that they adequately explained why the interception of wire communications was necessary to investigate this conspiracy and the target subjects, and that they contained a full and complete statement of facts to establish necessity under section 2518(1)(c). The court also held that the district court's application of 21 U.S.C. 851 to enhance defendant's sentence did not violate his Sixth Amendment rights; the district court failed to comply with section 851(b) and the error was not harmless; and two additional procedural defects warranted remand. Finally, the court concluded that the district court did not err by applying an upward adjustment under USSG 3B1.1 or in denying a downward adjustment under USSG 3E1.1(a) for acceptance of responsibility. Accordingly, the court affirmed the conviction, vacated the sentence, and remanded for resentencing.
Court Description: Criminal Law. The panel affirmed a conviction on three drug-related charges, vacated the sentence, and remanded for resentencing. The panel held that when considering a motion to suppress wiretap evidence, a reviewing district court judge should apply the Ninth Circuit’s two-step approach: (1) review de novo whether the application for a wiretap contains a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or be too dangerous; and (2) if the application meets those requirements, review for abuse of discretion the issuing judge’s conclusion that the wiretap was necessary. The panel held that the district court, which focused on the fact that other judges had reviewed the wiretap applications, erred by considering evidence beyond the statements in the supporting affidavits. The panel held that the affidavits adequately explained why the interception of wire communications was necessary to investigate this conspiracy and the target subjects, and that they contained a full and complete statement of facts to establish necessity under 18 U.S.C. § 2518(1)(c). The panel held that the district court did not abuse its discretion in finding necessity. UNITED STATES V. RODRIGUEZ 3 The panel held that the district court’s application of 21 U.S.C. § 851 to enhance the defendant’s sentence did not violate his Sixth Amendment rights. The panel held that the district court failed to comply with 21 U.S.C. § 851(b) when it did not ask the defendant if he affirmed or denied the prior convictions and did not inform him that he had to raise any challenge to a prior conviction before the sentence was imposed. The panel concluded that the error was not harmless. The panel wrote that two additional procedural defects warrant remand: the district court appears to have been uncertain of its responsibilities under § 851 as the sentencing hearing unfolded, and it is unclear whether the district court used the appropriate standard when ruling on the merits of the § 851 issues. The panel held that the district court did not violate the defendant’s constitutional rights by applying an upward adjustment under U.S.S.G. § 3B1.1 without submitting to a jury the issue of whether the defendant was a leader of criminal activity, nor clearly err in denying the defendant a downward adjustment under U.S.S.G. § 3E1.1(a) for acceptance of responsibility.
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