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NOT FOR PUBLICATION JAN 06 2012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-1

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 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 y 6002, which provides that:

no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

y 6002. This argument is precluded by United States v. Martinez-Navarro, in

which we held that the district court did not violate y 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 perjured himself is a proper

consideration in determining the length of a sentence within the appropriate

statutory range for a particular crime.' Id. at 1186. Here, the district court sat

through both trials, was familiar with pertinent facts, and had a basis on which to

determine that Sandoval had perjured himself in his compelled testimony. We

-2- conclude that the district court properly considered that Sandoval lied when

sentencing him to a sentence within and at the top of the Guidelines range.

Sandoval next argues that the district court's consideration of the fact that he

lied on the stand violates his Fifth Amendment privilege against compulsory

self-incrimination. We reject this argument because the Fifth Amendment

'provides no protection for the commission of perjury.' United States v. Thomas,

612 F.3d 1107, 1127 (9th Cir. 2010) (quoting United States v. Apfelbaum, 445 U.S.

115, 127 (1980)).

Sandoval further contends that even if the district court's use of his

compelled testimony was not in violation of y 6002, he was entitled to rely on the

district court's promise in open court that the testimony of Sandoval in his co-

defendant's trial would not be used against him during Sandoval's sentencing.

Sandoval points to two Ninth Circuit cases holding that a defendant is allowed to

rely on what the judge represents to him during his plea colloquy and sentencing,

arguing that the same guarantee should apply here. United States v. Munoz-Dela

Rosa, 495 F.2d 253, 256 (9th Cir. 1974) (oral pronouncement at sentencing

controls over written judgment); United States v. Buchanan, 59 F.3d 914, 918 (9th

Cir. 1995) (judge's oral pronouncement controls over a plea agreement waiver).

Here, the district court assured Sandoval that 'nothing he says can be used

-3- adversely against him.' However, the district court did not expressly promise that

it would not use the act of lying against Sandoval. Rather, in context, we read the

district court's comment to mean that the facts and admissions Sandoval made

could not be used against him. Further, Sandoval did not rely on the judge's oral

pronouncement in the same way as did the defendants in Munoz-Dela Rosa and

Buchanan. Sandoval was under an absolute duty to testify truthfully regardless of

any promises made by the district court. We conclude that the district court's

promises did not preclude it from considering in sentencing that Sandoval lied in

his compelled testimony.

Sandoval also argues that the district court erred in determining that its role

was ministerial when granting the motion to compel and that there should have

been an evidentiary hearing and adversarial process. Defendant waived this issue

by not objecting during sentencing. Even if he had raised the issue, y 6003(a)

states that the district court 'shall issue, . . . upon request of the United States

attorney for such district, an order requiring such individual to give testimony

. . . .' y 6003(a). The decision whether to grant immunity rests with the United

States, not with the court. See McCoy v. Commissioner, 696 F.2d 1234, 1237 (9th

Cir. 1982). Sandoval did not allege prosecutorial misconduct or other abuse. The

-4- district court did not err in determining that its duty to grant the motion was

ministerial.

Finally, Sandoval argues that the district court erred in increasing his

sentence without maµing specific findings of materiality in applying an obstruction

of justice enhancement. We reject this claim. The district court explained that it

was not giving Sandoval an obstruction of justice enhancement. Instead, it

concluded that there was enough leeway in the Guidelines range to taµe into

account Sandoval's false testimony. The district court fairly explained its

reasoning for the sentence it imposed and did not abuse its discretion.

AFFIRMED.

-5-

FILED

United States v. Sandoval, 10-50634 JAN 06 2012

MOLLY C. DWYER, CLERK

NELSON, Senior Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

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 (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 maµe 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 consider Sandoval's

compelled testimony at sentencing, but reneged on that promise by finding that

Sandoval lied and by taµing that factor into account. The district court concluded

that Sandoval lied based on untested criteria not subjected to the due process safeguards present in a full-blown trial. As conceded at oral argument, the

Government could have prosecuted Sandoval for perjury but chose not to do so.

While the sentence imposed on Sandoval falls within the applicable

Guidelines range, it exceeded the Government's recommendation considerably.

The district court may have imposed a lesser term if it had not considered

Sandoval's testimony at Prado-Segura's trial. Because the panel cannot determine

the harmlessness of the error based on the record before it, I would remand for

resentencing. See Williams v. United States, 503 U.S. 193, 202-03 (1992).

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