Zaragoza

MEMORANDUM ***

Francisco Ruiz Martinez, Anthony Zaragoza and Alberto Pina, who were prosecuted for their activities as members of the Columbia Lil’ Cycos (CLCS), appeal their convictions and sentences. Nelson Serrano-Garcia and Hector Rodriguez, also members of CLCS, appeal their sentences only. We affirm the convictions, vacate the sentences of Martinez, Zaragoza and Pina, affirm the sentence of Serrano, and dismiss Rodriguez’s appeal.

(1) The district court refused to suppress the results of a telephone wiretap order obtained by the government. We *662 agree with the district court that the issuing judge did not abuse his discretion when he determined that issuance of the wiretap order was necessary. See 18 U.S.C. § 2518 (3)(c); United States v. Kahn, 415 U.S. 143 , 153 n. 12, 94 S.Ct. 977 , 983 n. 12, 39 L.Ed.2d 225 (1974); United States v. Smith, 893 F.2d 1573, 1582 (9th Cir.1990); United States v. Bailey, 607 F.2d 237, 241-42 (9th Cir.1979). Viewing the application for the tap in a practical commonsense fashion, as we must, 1 it is apparent that a wiretap was necessary to the investigation of CLCS, despite the fact that some success had been achieved by the use of more…

concurring in part and dissenting in part.

I concur in the majority’s memorandum disposition, with the exception of its resolution of issue 10: whether or not Rodriguez is barred from appealing his sentence by the terms of his plea agreement. I believe he is not. The question is whether Rodriguez has waived his right to appeal. We construe any waiver narrowly and strictly against the drafter—in this case, the Government.

By the terms of the plea agreement, Rodriguez waived his right to appeal if the court found an offense level of 35 or lower and did not depart upwards in imposing his sentence. The sentence was consistent with these terms. However, Rodriguez further reserved his right to challenge his sentence in any collateral proceeding if an explicitly retroactive change in the Sentencing Guidelines, sentencing statutes, or statutes of conviction occurred.

In Booker, the Court explicitly changed both the sentencing statutes and Sentencing Guidelines. The Court “modified ... the federal sentencing statute” by severing and excising 18 U.S.C. § 3553 (b)(1), “the provision of the federal sentencing statute that makes the Guidelines mandatory.” Id. at 245 , 125 S.Ct. 738 .…