FILED

NOT FOR PUBLICATION

SEP 6 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50088

Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-4

v.

MEMORANDUM*

MICHAEL ANTHONY TORRES,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 13-50095

Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-2

v.

CESAR MUNOZ GONZALEZ, AKA

Blanco, AKA Cesar Gonzalez, AKA Ricardo Martines, AKA Ricardo O. Martinez, AKA Ricardo Martinez-Osorio, AKA Osorio Ricardo,

Defendant - Appellant.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. UNITED STATES OF AMERICA, No. 13-50102

Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-1

v.

RAFAEL MUNOZ GONZALEZ, AKA

“C”, AKA Cisco, AKA Homeboy, AKA Big Homie,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 13-50107

Plaintiff - Appellee, D.C. No. 2:10-cr-00567-AHM-3

v.

ABRAHAM ALDANA, AKA Listo,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Alvin Howard Matz, District Judge, Presiding

Argued and Submitted March 8, 2016 Submission Vacated September 27, 2016 Resubmitted September 6, 2017 Pasadena, California Before: CLIFTON and IKUTA, Circuit Judges and BLOCK,** Senior District Judge.

Rafael Munoz Gonzalez, Cesar Munoz Gonzalez, Abraham Aldana, and

Michael Torres appeal their convictions and sentences for racketeering, 18 U.S.C.

§ 1962, drug trafficking conspiracy, 21 U.S.C. § 846, and related offenses.1 We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

The district court’s Pinkerton jury instructions did not violate the common

law or due process. Our cases establish that “[c]onvictions for the use of firearms

during the commission of certain felonies pursuant to 18 U.S.C. § 924 may be

supported under a conspiracy theory.” United States v. Johnson, 444 F.3d 1026,

1029 (9th Cir. 2004); see also United States v. Alvarez-Valenzuela, 231 F.3d 1198,

1203 (9th Cir. 2000). Nor did the Pinkerton instructions offend due process

because there was a strong link between the defendants’ drug trafficking

conspiracy and the § 924(c) firearms offense. Cf. United States v. Castaneda, 9

F.3d 761, 765 (9th Cir. 1993) (holding that due process limits Pinkerton liability

only in situations “where the relationship between the defendant and the

substantive offense is slight”), overruled on other grounds by United States v.

** The Honorable Frederic Block, Senior District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation. 1 We address several of the defendants’ claims in a concurrently filed opinion. See United States v. Torres, — F.3d — (9th Cir. 2017). 3 Nordby, 225 F.3d 1053 (9th Cir. 2000). Similarly, the district court did not err in

giving Ninth Circuit Model Criminal Jury Instruction 8.25 because under the

circumstances of this case, a reasonable jury could not have been misled by the use

of the words “action or actions” instead of the word “crime.” Finally, the district

court did not plainly err in using the term “overall conspiracy” without additional

clarification in the special verdict form for Count Seven.

The district court likewise did not err in declining to dismiss the indictment

for outrageous government conduct. Even if there was error resulting from

erroneous testimony before the grand jury, such error was “rendered harmless by

the [guilty] verdict.” United States v. Navarro, 608 F.3d 529, 540 (9th Cir. 2010)

(relying on United States v. Mechanik, 475 U.S. 66, 73 (1986)).

The district court did not err in concluding that Rafael Munoz Gonzalez was

subject to a mandatory minimum life sentence based on his conviction under 21

U.S.C. § 846. Notwithstanding the omission of § 846 from the triggering offenses

enumerated in 21 U.S.C. § 841(b)(1)(A), we have held that “[a] person who

conspires to distribute a controlled substance . . . is subject to the sentence

enhancements provided by” 21 U.S.C. § 841(b)(1)(A). United States v. O’Brien,

52 F.3d 277, 278 (9th Cir. 1995). We reject Rafael Munoz Gonzalez’s argument

4 that O’Brien’s holding regarding § 846 is mere dicta because addressing the § 846

issue was a necessary component of the decision. Id. at 277–78.

The district court likewise did not err in holding that Rafael Munoz

Gonzalez’s prior convictions qualified as “felony drug offenses” triggering an

enhanced mandatory minimum sentence under § 841(b). Title 21 defines “felony

drug offense” as “an offense that is punishable by imprisonment for more than one

year under any law of the United States or of a State or foreign country that

prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic

steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Rafael

Munoz Gonzalez’s 1990 conviction under 21 U.S.C. § 846 was punishable by

more than one year of imprisonment and clearly involved conduct related to

narcotics, as his agreement to distribute illegal narcotics was itself an act satisfying

the “conduct” requirement. See United States v. Shabani, 513 U.S. 10, 16 (1994).

His conviction under section 11378 of the California Health and Safety Code for

possession of methamphetamine with intent to sell likewise qualifies as a felony

5 drug offense even if we apply the categorical approach.2 Section 11378 is a

divisible statute subject to the modified categorical approach, United States v.

Ocampo-Estrada, No. 15-50471, — F.3d —, 2017 WL ___, slip op. at *14 (9th

Cir. Aug. 29, 2017), and is punishable by more than one year in prison, see Cal.

Penal Code § 1170(h)(1). The criminal complaint and electronic docket sheet from

Rafael Munoz Gonzalez’s 2000 conviction establish that he was subject to a final

conviction for possessing methamphetamine for sale. See United States v. Torre-

Jimenez, 771 F.3d 1163, 1167–69 (9th Cir. 2014) (applying the modified

categorical approach to a divisible statute). Because the federal definition of

“felony drug offense” includes methamphetamine as a controlled substance, see 21

U.S.C. § 802(9)(B), (44), Rafael Munoz Gonzalez’s specific offense of conviction

involves conduct entirely encompassed by the federal definition. Accordingly,

Rafael Munoz Gonzalez’s state conviction qualifies as a “felony drug offense”

under § 841(b).

2 Though both parties argue that the categorical approach applies when determining whether a prior conviction is a “felony drug offense” under § 841, we have never held in a published opinion that it applies in this context. Though we need not reach the issue, we note that the categorical approach may be a poor fit for sentencing determinations under 21 U.S.C. § 851, which sets up a statutory, trial- like procedure for determining whether the defendant has a prior conviction for a “felony drug offense.” 6 The district court did not plainly err in holding that Rafael Munoz

Gonzalez’s VICAR convictions, 18 U.S.C. § 1959(a), under Counts Five and Six

did not violate the double jeopardy clause. Gonzalez’s convictions did not arise

from “the same act or transaction,” see Blockburger v. United States, 284 U.S. 299,

304 (1932), because they arose from separate conspiracies to assault and murder

rival gang members. Gonzalez’s convictions likewise did not arise from the same

conduct. See United States v. Lynn, 636 F.3d 1127, 1136–37 (9th Cir. 2011).

Cesar Munoz Gonzalez’s Confrontation Clause rights were not violated by

his inability to cross examine the government fingerprint expert at sentencing.

“[T]he law on hearsay at sentencing is still what it was before [Crawford v.

Washington, 541 U.S. 36 (2004)]: hearsay is admissible at sentencing, so long as it

is accompanied by some minimal indicia of reliability.” United States v. Littlesun,

444 F.3d 1196, 1200 (9th Cir. 2006) (internal quotation marks omitted); see also

Williams v. New York, 337 U.S. 241, 246 (1949). Here, the testimony offered by

the government confirmed that the fingerprint exhibits submitted by the

government were sufficiently reliable to satisfy due process.

Cesar Munoz Gonzalez’s sentencing hearing was neither procedurally nor

substantively unreasonable. The district court did not abuse its discretion in

concluding that the government had established the existence of Gonzalez’s prior

7 convictions, and applied the correct standard of proof in determining that the

government had established the prior convictions beyond a reasonable doubt.

Cesar Munoz Gonzalez’s life sentence also was not substantively unreasonable

because the district court imposed the statutory mandatory minimum. See United

States v. Wipf, 620 F.3d 1168, 1170–71 (9th Cir. 2010).

The district court did not err in denying Aldana’s motion to suppress the

evidence recovered from the search of his residence. The warrant authorizing the

search was supported by probable cause, see Dawson v. City of Seattle, 435 F.3d

1054, 1062 (9th Cir. 2006), because there was direct evidence indicating that

Aldana was involved in the murder that triggered the investigation. The passage of

time between the murder and the search does not render the warrant invalid

because the “facts and circumstances taken as a whole gave the [issuing court]

probable cause to believe that the desired items would be found in the search.”

United States v. Reid, 634 F.2d 469, 473 (9th Cir. 1980). And even if the affidavit

supporting the warrant contained misleading omissions, Aldana failed to make a

“substantial preliminary showing” that the omissions were intentional or reckless

or that the affidavit would not have demonstrated probable cause if the omitted

statements were included. See United States v. Meling, 47 F.3d 1546, 1553 (9th

Cir. 1995). Because the warrant was valid, the government’s seizure of items that

8 were not mentioned in the warrant was valid under the plain view doctrine.

Washington v. Chrisman, 455 U.S. 1, 5–6 (1982).

Lastly, the district court did not commit procedural error by denying

Aldana’s request to reduce his sentence based on discharged terms of

imprisonment. At the time he was sentenced, Aldana was ineligible for a reduction

under § 5G1.3 of the Sentencing Guidelines because his prior offense did not

“result[] in an increase in the . . . offense level for the instant offense.” U.S.S.G.

§ 5G1.3, cmt. n.2(A) (2010). The Presentence Report based Aldana’s offense level

calculation on prior assault convictions that were unrelated to any aspect of this

case, and the district court adopted that calculation. See United States v. Scott, 642

F.3d 791, 801 (9th Cir. 2011).

AFFIRMED.

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