United States v. Rodriguez, No. 15-50096 (9th Cir. 2017)Annotate this Case
Defendant 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.