United States v. Martin Sandoval

FILED

NOT FOR PUBLICATION JAN 06 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50634

Plaintiff - Appellee, D.C. No. 3:10-cr-01582-LAB-

v.

MEMORANDUM *

MARTIN SANDOVAL,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted December 7, 2011 Pasadena, California

Before: D.W. NELSON, GOULD, and IKUTA, Circuit Judges.

Martin Sandoval was convicted for conspiracy to distribute marijuana, in

violation of 21 U.S.C. yy 841(a)(1) and 846, and for possession of marijuana with

intent to distribute, in violation of 21 U.S.C. y 841(a)(1). The district court then

granted the government's motion to compel Sandoval's testimony in a co-

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. defendant's trial pursuant to 18 U.S.C. y 6002. At Sandoval's sentencing, the

district court imposed a…

MEMORANDUM *

Martin Sandoval was convicted for conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841 (a)(1) and 846, and for *655 possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). The district court then granted the government’s motion to compel Sandoval’s testimony in a co-defendant’s trial pursuant to 18 U.S.C. § 6002 . At Sandoval’s sentencing, the district court imposed a sentence of 97 months, at the high end of the Guidelines range, partly because it determined that Sandoval lied during his compelled testimony in his co-defendant’s trial.

Sandoval first argues that the district court erred in using his compelled testimony against him at sentencing, violating § 6002, which provides that:

§ 6002. This argument is precluded by United States v. Martinez-Navarro, in which we held that the district court did not violate § 6002 when it considered the defendants’ lies during the compelled testimony at sentencing because no incriminatory facts were used to increase the sentence, only the fact the defendants perjured themselves. 604 F.2d 1184, 1186-87 (9th Cir.1979). “[A]n assessment by a sentencing judge that a defendant has…

dissenting:

I respectfully dissent. I would remand to the district court for resentencing.

This case is clearly distinguishable from United States v. Martinez-Navarro, 604 F.2d 1184 (9th Cir.1979) (per curiam). There, both defendants gave sworn, executed statements implicating a third co-defendant as part of a smuggling conspiracy but later offered contradictory testimony at the co-defendant’s trial. Id. at 1186 . Here, by contrast, Sandoval did not make a sworn, executed statement implicating another person, and, by inference, inculpating himself. In addition, the defendants in Martinez-Navarro suffered convictions based in part on stipulated facts, id., but Sandoval did not stipulate to any facts. Instead, the evidence in support of the underlying conviction came from Sandoval’s purported confession. DEA agents testified at trial that Sandoval confessed. However, the agents did not record the confession, and the record does not contain anything to support the agents’ claims that Sandoval confessed. Moreover, Sandoval vigorously denies that he ever confessed. In fact, he has been steadfast in claiming his innocence.

Even more troubling, the district court promised not to…