United States v. Rafael Franco-Reyes

MEMORANDUM

Appellant Rafael Franco-Reyes appeals the introduction of certain evidence at his criminal trial. Franco-Reyes also disputes the procedure used in calculating his sentence.

Under Federal Rule of Criminal Procedure 12(b)(3), a party wishing to suppress evidence must file a motion to suppress prior to trial. Under Rule 12(e), a failure to timely file a motion to suppress constitutes waiver of the issue. See United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir.2002). Here, Franco-Reyes did not move to suppress Exhibits 7 and 8 or the agents’ testimony prior to trial. As a consequence, Franco-Reyes waived his challenge to the admission of such evidence.

“When a defendant does not raise an objection to his sentence before the district court, we apply plain error review.” United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir.2009) (citation omitted). The applicable Guidelines range must be calculated correctly; it would be a “significant procedural error” for a district court to fail to do so. United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir.2011).

Here, like in United States v. Carty, 520 F.3d 984, 995 (9th Cir.2008), the district court read both parties’…