United States v. Carlos Herrera-Rivera

Partial Concurrence and Partial Dissent by Judge GRABER

OPINION

Carlos Herrera-Rivera appeals his jury trial conviction for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1), and the 120-month sentence imposed by the district court. Herrera-Rivera contends that the district court erred by denying his request for an evidentiary hearing on his motion to suppress, denying his Batson challenge without conducting an appropriate Batson analysis, and denying a minor-role reduction. He further contends that the government withheld evidence, resulting in prejudice both at trial and at sentencing. We reject each of these contentions. However, we agree with Herrera-Rivera that the district court plainly erred by applying an obstruction of justice enhancement to his sentence without making the express findings required by United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014). Accordingly, we affirm the conviction, vacate the sentence, and remand for further proceedings consistent with this opinion.

I. Background

A. Facts

On February 13, 2014, an Intercaliforni-as bus was referred to secondary inspection at the Highway 86 Indio Border…

concurring in part and dissenting in part:

With respect to the claim that the district court erred by enhancing Defendant’s sentence for obstruction of justice, I would affirm because Defendant has not satisfied the requirements of plain error review. In all other respects, I concur.

Defendant did not raise to the district court, and therefore did not preserve, his claim regarding the sentencing enhance *1177 ment for obstruction of justice. “We review unpreserved claims of procedural error at sentencing for plain error.” United States v. Quintero-Junco, 754 F.3d 746, 749 (9th Cir. 2014). Plain error review requires the defendant to show: (1) that there was an error; (2) that the error was plain; (3) that the error affected the defendant’s substantial rights; and (4) that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Macias, 789 F.3d 1011, 1022 (9th Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 1168 , 194 L.Ed.2d 190 (2016) (internal quotation marks omitted). Moreover, the defendant, not the government, “bears the burden of persuasion with respect to prejudice.” United States v. Olano, 507 U.S. 725, 734 ,…

I. Background

A. Facts

On February 13, 2014, an Intercalifornias bus was referred to secondary inspection at the Highway 86 Indio Border Patrol Station in Westmoreland, California. United States Border Patrol agents boarded the bus, performed an immigration inspection, and checked the bags in the overhead compartment to make sure that each belonged to someone on the bus. A few rows from the back of the bus, agents found

UNITED STATES V. HERRERA-RIVERA

an unclaimed backpack. Inside, they found six bundles wrapped in black electrical tape. A subsequent laboratory analysis showed that the bundles contained more than a kilogram of methamphetamine.

Herrera-Rivera was sitting a few rows behind the bag and had crossed the United States-Mexico border earlier that morning. Agents searched Herrera-Rivera’s person, with his consent, and discovered black marks on his stomach that they believed were residue from electrical tape. Agents also performed a search, with consent, of two cell phones they found in Herrera-Rivera’s possession, that contained text messages appearing to arrange a rendezvous and payment for Herrera-Rivera’s return trip to Mexico.

The Border…