Petition for Writ of Certiorari — Salvador Ojeda-Amarillas, Petitioner v. United States
Supreme Court briefJul 8, 2020
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No. __________
IN THE SUPREME COURT OF THE UNITED STATES
══════════════════════════
SALVADOR OJEDA-AMARILLAS,
Petitioner,
-vUNITED STATES OF AMERICA,
Respondent.
══════════════════════════
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
══════════════════════════
JEREMY WARREN
Warren & Burstein
501 W. Broadway, Suite 240
San Diego, California 92101
Telephone: (619) 234-4433
Facsimile: (619) 234-4433
Attorney for Petitioner
QUESTIONS PRESENTED FOR REVIEW
1.
Whether the Court of Appeals erred in finding the July 2006 wiretap application
met the necessity requirements and whether it erred in holding Mr. Ojeda waived his
argument to subsequent wiretap applications?
2.
Did the Court of Appeals err in affirming the application of a two-level
firearms enhancement and a four-level, leadership-role enhancement?
3.
Mr. Ojeda received a 20-year sentence after the district court gave excessive
weight to one sentencing factor, while ignoring mitigating factors. Did the Court
of Appeals err in affirming this effective life sentence?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ............................................................ i
TABLE OF AUTHORITIES ................................................................................... iv
OPINION BELOW ................................................................................................... 1
JURISDICTION ....................................................................................................... 2
STATEMENT OF THE CASE ................................................................................ 2
A.
The investigation and the wiretaps ............................................................ 2
1. The July 2006 wiretap .......................................................................... 3
2. The August 2006 wiretap ..................................................................... 4
3. The September 2006 wiretap ............................................................... 5
4. The October 2006 wiretap .................................................................... 6
5. The November 2006 wiretap ................................................................ 6
6. The December 2006 wiretap ................................................................ 7
7. The February 2007 wiretap .................................................................. 8
8. The March 2007 wiretap ...................................................................... 9
9. The April 2007 wiretap ...................................................................... 10
B.
Mr. Ojeda’s arrest and the pretrial proceedings ...................................... 10
C.
The trial ................................................................................................... 12
D.
The sentencing ......................................................................................... 13
ii
E.
The appeal ............................................................................................... 15
REASON FOR GRANTING THE PETITION ...................................................... 16
Review is warranted to correct the Court of Appeals’ affirmance ......................... 16
A. The Court of Appeals erred in its findings regarding the wiretap applications
...................................................................................................................... 17
1. The July 2006 application did not establish necessity ....................... 19
2. Mr. Ojeda’s challenge to the remaining wiretaps was not waived .... 21
3. The August 2006 to October 2006 applications fail to establish
necessity ............................................................................................. 22
4. The November 2006 to April 2007 wiretaps were unnecessary ........ 24
5. The error was not harmless ................................................................ 25
B. The Court of Appeals erred in affirming Mr. Ojeda’s 240-month sentence. 26
1. The Court of Appeals erred in affirming a firearms enhancement .... 27
2. The Court of Appeals erred in affirming a four-level, aggravating-role
enhancement ....................................................................................... 29
a.
Application of the role enhancement under section
3B1.1 requires the district court to consider the
enumerated factors .................................................. 30
b.
The district court failed to consider the enumerated
factors or make the requisite findings .................... 31
c.
The relevant factors demonstrate, at most, Mr. Ojeda
was a manager or supervisor, not an organizer or leader
.................................................................................. 34
iii
3. The enhancement errors were not harmless ....................................... 37
4. The Court of Appeals erred in affirming the substantive reasonableness
of Mr. Ojeda’s sentence ..................................................................... 38
CONCLUSION....................................................................................................... 40
APPENDIX.............................................................................................................. A
Court of Appeals for the Ninth Circuit unpublished memorandum in United
States v. Ojeda-Amarillas, No. 18-50195 (9th Cir. 2020)
iv
TABLE OF AUTHORITIES
FEDERAL CASES
United States v. Avila,
905 F.2d 295 (9th Cir. 1990) ...................................................................... 16
United States v. Blackmon,
273 F.3d 1204 (9th Cir. 2001) .................................................. 17, 18, 23, 25
United States v. Chau,
293 F.3d 96 (3d Cir. 2002) ........................................................................... 34
United States v. Carneiro,
861 F.2d 1171 (9th Cir. 1988) ................................................................ 21, 23
United States v. Carty,
520 F.3d 984 (9th Cir. 2008) .................................................................. 38, 39
United States v. Castillo-Garcia,
117 F.3d 1179 (10th Cir. 1997) .................................................................... 25
United States v. Crowe,
563 F.3d 969 (9th Cir. 2009) .................................................................. 38, 39
United States v. Diaz-Rios,
706 F.3d 795 (7th Cir. 2013) ........................................................................ 29
United States v. Giordano,
416 U.S. 505 (1974) ..................................................................................... 19
United States v. Grier,
475 F.3d 556 (3d Cir. 2007) ......................................................................... 38
United States v. Gunning,
401 F.3d 1145 (9th Cir. 2005) ...................................................................... 37
v
United States v. Hinkson,
585 F.3d 1247 (9th Cir. 2009) .................................................................... 32
United States v. Ingham,
476 F.3d 706 (9th Cir. 2007) ........................................................................ 31
United States v. Ippolito,
774 F.2d 1482 (9th Cir. 1985) ...................................................................... 17
United States v. Job,
871 F.3d 852 (9th Cir. 2017) ........................................................................ 26
United States v. Lopez-Sandoval,
146 F.3d 712 (9th Cir. 1988) ........................................................................ 29
United States v. Mancinas-Flores,
588 F.3d 677 (9th Cir. 2009) ........................................................................ 32
United States v. Molina-Martinez,
136 S. Ct. 1338 (2016) ................................................................................. 38
United States v. Odom,
13 F.3d 949 (6th Cir. 1994) .......................................................................... 31
United States v. Rice,
478 F.3d 704 (6th Cir. 2007) ........................................................................ 19
United States v. Rivera,
527 F.3d 891 (9th Cir. 2008) .................................................................. 19, 20
United States v. Ressam,
679 F.3d 1069 (9th Cir. 2012) ...................................................................... 38
United States v. Rodriguez-Castro,
641 F.3d 1189 (9th Cir. 2011) ...................................................................... 29
United States v. Rodriguez,
851 F.3d 931 (9th Cir. 2017) .................................................................. 17, 18
vi
United States v. Stevens,
985 F.2d 1175 (2d Cir. 1993) ....................................................................... 31
United States v. Stewart,
926 F.2d 899 (9th Cir. 1991) ........................................................................ 29
United States v. Wacker,
72 F.3d 1453 (10th Cir. 1995) ...................................................................... 33
United States v. Wijegoonaratna,
922 F.3d 992 (9th Cir. 2019).......................................................................... 37
United States v. Yong Lee,
725 F.3d 1159 (9th Cir. 2013) ........................................................................ 40
FEDERAL STATUTES
18 U.S.C. § 2515..................................................................................................... 18
18 U.S.C. § 2518.............................................................................................. passim
18 U.S.C. § 3553.............................................................................................. passim
21 U.S.C. § 841....................................................................................................... 12
21 U.S.C. § 846....................................................................................................... 12
21 U.S.C. § 952....................................................................................................... 12
21 U.S.C. § 960....................................................................................................... 12
21 U.S.C. § 963....................................................................................................... 12
28 U.S.C. § 1254....................................................................................................... 2
SENTENCING GUIDELINES
U.S.S.G. § 2D1.1 ........................................................................................... passim
U.S.S.G. § 3B1.1 ........................................................................................... passim
U.S.S.G. § 3C1.1 .................................................................................................... 13
vii
IN THE SUPREME COURT OF THE UNITED STATES
══════════════════════════
SALVADOR OJEDA-AMARILLAS,
Petitioner,
-vUNITED STATES OF AMERICA,
Respondent.
══════════════════════════
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
══════════════════════════
Petitioner Salvador Ojeda-Amarillas respectfully prays that a writ of certiorari
issue to review the judgment of the United States Court of Appeals for the Ninth
Circuit.
OPINION BELOW
In an unpublished memorandum, the Ninth Circuit affirmed petitioner’s
conviction and sentence.
2020).
United States v. Ojeda-Amarillas, No. 18-50195 (9th Cir.
(A copy of the memorandum is attached as Appendix A.)
1
JURISDICTION
On April 13, 2020, the Ninth Circuit filed its memorandum decision.
This
Court has jurisdiction under 28 U.S.C. § 1254(1).
STATEMENT OF THE CASE
A.
The investigation and the wiretaps.
In 2006, the DEA began investigating Andres, David, Joel and Salvador
Chavez-Chavez, brothers suspected of distributing methamphetamine in San Diego
County.
PSR:4-5.1
Andres was believed to be the head of the so-called “Chavez-
Chavez Drug Trafficking Organization” (DTO), and Salvador headed a second
methamphetamine DTO, distributing in San Diego with his nephew.
PSR:5.
Both DTOs “distributed methamphetamine through sub-distributors and utilized
multiple individuals to assist them in transporting and delivering the drugs to the
clients.
Additionally, some individuals were hired to transport money and drugs
across the international border.”
PSR:5.
The investigation revealed Mr. Ojeda to
be a suspected source of supply for both DTOs.
heavily on court-authorized wiretaps.
PSR:5.
The agents secured ten months of wiretaps
on numerous phones used by targets including Mr. Ojeda.
1
The investigation relied
Relevant to this appeal,
A copy of the Pre-Sentence Report (“PSR”) has been lodged with the Court of
Appeals for the Ninth Circuit.
2
agents obtained nine wiretap authorizations between July, 2006, and April, 2007.
ER:9-302, 390-424.
1.
The July 2006 wiretap.
On July 26, 2006, agents sought to tap target telephone (“T”) 2, used by
Andres Chavez-Chavez.
ER:390.
The application sought to intercept
communications of Andres, David and Salvador Chavez-Chavez; Gerardo
Casanova; Carlos Aviles; and “Chava 2000,” later identified as Mr. Ojeda. ER:391.
DEA Special Agent Katheryn Jackson was the affiant. She stated she “suspect[s]
the immediate Mexico-based supplier is or works with an unknown person who uses
a phone subscribed to ‘Chava 2000.’ It appears ‘Chava 2000’ (or those he works
with) may use Carlos Aviles to import methamphetamine into the United States from
couriers allegedly employed by Aviles.”
ER:391.
Agent Jackson further
suspected “Chavez is supplied directly or indirectly by ‘Chava 2000.’” ER:391-92.
To establish probable cause for T-2, Agent Jackson outlined evidence that
“Andres Chavez-Chavez is a multi-pound methamphetamine distributor in San
Diego County,” and “Carlos Aviles heads a transportation cell that imports
methamphetamine from Mexico to the United States.”
ER:392.
In addition, the application cited phone analysis data showing Aviles and
Andres Chavez-Chavez have “both called (619) 207-1113, subscribed to ‘Chava
2000,’ San Ysidro California.”
ER:399.
3
Based on these calls, Agent Jackson
“suspect[s] ‘Chava 2000’ is or works for a methamphetamine distributor who
supplies Andres Chavez and who also uses Carlos Aviles’s ‘cell’ to transport
methamphetamine into the United States.”
ER:399-400.
As to necessity, Agent Jackson outlined traditional investigative techniques
such as undercover operations, use of informants, physical surveillance, search and
seizure methods, and grand jury subpoenas.
However, Agent Jackson stated many
of these techniques were unavailable for Chava 2000, “because at this time we do
not know Chava 2000’s identity.”
ER:400, 404.
As for phone analysis, the agent stated “we subpoenaed toll records for T-1,
T-2, and Chava 2000’s phone.
We also obtained subscriber information for those
phones and several phones in contact with those phones.”
ER:414.
However, she
concluded she “do[es] not believe continued phone analysis, alone or in combination
with the other investigative techniques we have used, will accomplish [the]
objectives.”
ER:414.
The court granted the government’s request.
ER:419-24.
Over the next
thirty days, agents intercepted drug-related calls between, among others, Mr. Ojeda
and Andres Chavez.
2.
ER:419-24.
The August 2006 Wiretap.
On August 26, 2006, agents filed their first extension request.
They sought
continued permission to monitor Andres Chavez over T-2 (as well as two other
4
phones belonging to David Chavez, T-4 and T-5).
ER:9.
Mr. Ojeda was listed as
a subject: “[w]e have identified Chava 2000 [] as Salvador Amarillas Ojeda.”
ER:9, 21.
She noted calls between Ojeda and Andres Chavez, leading her to
suspect Mr. Ojeda “may be a courier or transporter used to carry loads into the U.S.
or smuggle loads through the border.”
ER:21.
For probable cause, the application summarized several allegedly drug-related
conversations intercepted in July, and further phone analysis, none of which
involved Mr. Ojeda.
ER:22-30.
In the necessity section, with the exception of
mentioning no cooperators had been identified with information about Mr. Ojeda,
Agent Jackson did not discuss any traditional investigative procedures that had been
tried against Mr. Ojeda (although such techniques were discussed for other targets).
ER:30-38.
3.
The court approved the wiretap.
The September 2006 Wiretap.
On September 26, 2006, the government sought continued permission to
intercept T-2 and T-5 (used by Andres and David Chavez-Chavez).
list of subjects jumped to 26, including Mr. Ojeda.
ER:41.
ER:41.
The
Once again, Agent
Jackson summarized calls from the previous wiretap in the probable cause section.
ER:53.
None involved Mr. Ojeda.
ER:53-59.
As to necessity, Mr. Ojeda was
mentioned only once: agents surveilled Andres Chavez-Chavez and Mr. Ojeda on
September 13, 2006, which “agents are still analyzing.”
5
ER:63.
There was no
discussion of any other investigative techniques that were attempted for Mr. Ojeda.
Again, the court approved the wiretap application.
4.
The October 2006 Wiretap.
On October 20, 2006, agents sought their fourth wiretap authorization for
David Chavez-Chavez (T-2, T-4, and T-5), and added two more targets.
The list of subjects skyrocketed to 56 individuals, including Mr. Ojeda.
ER:73.
ER:73-74.
As for probable cause, Agent Jackson noted, “[w]e have identified Salvador
Amarillas Ojeda [] as being another of Andres Chavez’s narcotics suppliers, and
conducted surveillance of what I believe was a drug transaction involving Ojeda and
David Chavez.”
ER:87.
Agent Jackson summarized the calls and surveillance of
Mr. Ojeda related to a transaction on October 1, 2006.
briefly mentioned in one other call.
ER:93.
ER:88.
Mr. Ojeda was
There was no other discussion of
traditional investigative techniques for Mr. Ojeda.
The court approved the
continued wiretap.
5.
The November 2006 wiretap.
On November 27, 2006, the government sought another authorization, this
time seeking to tap Mr. Ojeda’s phone (T-3), as well as continued authorization for
T-2, T-4, T-6, and T-7.
ER:117-18. Agent Jackson noted “Salvador Amarillas
Ojeda [] appears to continue to supply Andres and David Chavez with
methamphetamine, and is using T-3 to facilitate his narcotics trafficking.”
6
ER:130.
She further summarized the calls between Mr. Ojeda and David Chavez-Chavez (T2), allegedly involving drug transactions, as well as surveillance of possible drug
deals.
ER:138-40.
Moreover, Agent Jackson analyzed Mr. Ojeda’s toll records,
stating his phone “is in contact with phones used by other Subjects or individuals
involved in narcotics trafficking.”
ER:146-47.
In the necessity section, Agent Jackson stated, “[w]hile we have made
progress in this investigation, we have not achieved our investigative objectives[.]”.
ER:147.
Agents still “have not yet identified any individuals who are, or may be,
working with these Subjects in trafficking narcotics[.]”
ER:149.
However, at this
point, agents had conducted physical surveillance, including at Mr. Ojeda’s
residence, and extended surveillance of Mr. Ojeda’s daily activities.
ER:151-52.
Agents performed search and seizures on other targets, used administrative
subpoenas, and conducted phone analysis of Mr. Ojeda’s phone.
ER:154-58.
Agent Jackson labeled Mr. Ojeda “a significant methamphetamine supplier
who not only provides Andres Chavez with narcotics, but also provides drugs to
other distributors in the United States.”
government sought more wiretaps.
6.
ER:160.
ER:160.
Despite these achievements, the
It was granted.
The December 2006 wiretap.
On December 29, 2006, the government sought to continue tapping Mr. Ojeda
on T-3, as well as David Chavez-Chavez (T-2) and Joel Chavez-Chavez (T-14).
7
ER:165-66.
In the necessity section, as before, Agent Jackson explained the
difficulty of introducing undercovers and cooperators/informants to Mr. Ojeda.
ER:193.
However, the application included information showing that traditional
investigative efforts were productive, such as physical surveillance on a “near daily
basis.” ER:195.
Specifically, agents successfully conducted “extended
surveillance of the activities of the Chavez group and Ojeda,” and a narcotics
transaction between David Chavez-Chavez and Mr. Ojeda.
ER:195.
Ultimately,
the application repeated much of the language from previous applications,
summarily concluding that the goals of the investigation could not be accomplished
through traditional techniques.
7.
ER:191-205.
The court authorized the wiretap.
The February 2007 wiretap.
After the sixth round of wiretaps, the government still was not satisfied.
In
February 2007, it sought another extension on Mr. Ojeda’s phone, as well as three
other targets.
ER:211.
The application tracked the previous ones.
intercepts and surveillance over the last month.
Its affidavit cited pertinent
ER:226-30.
As to Mr. Ojeda, it
stated, “[w]e have learned that Salvador Amarillas Ojeda has obtained narcotics
[probably methamphetamine] from an individual in Mexicali, Mexico, who we have
presently identified only as Raul and also appears to be supplied with narcotics by
an individual presently known only as Bingo.”
8
ER:227.
As to necessity, the pattern continued.
ER:747.
Surveillance was working.
Agent Jackson explained that, “[o]n a number of occasions, agents have observed
Ojeda using public pay phones, rather than his cell phones, during surveillance.
I
believe that Ojeda is using the pay phones to minimize his exposure to possible
wiretaps of his cell phones.”
8.
ER:248.
The court authorized the wiretap.
The March 2007 wiretap.
On March 9, 2007, the government sought permission to continue intercepting
Mr. Ojeda’s phone, as well as two new target phones.
ER:264.
As before, the
application summarized suspected drug-related calls from the previous month, as
well as the same boilerplate reasons why traditional methods had not been, or could
not be fruitful.
ER:271-93.
Moreover, it cited the same broad goals as the
previous months: “[T]he interception of T-3 is necessary in order to continue our
investigation of Ojeda’s narcotics trafficking in the United States. The interception
of calls over T-3 should allow us to identify Ojeda’s sources of supply for narcotics,
to identify the means/methods used by these sources to smuggle drugs into the
United States and the means/methods used by Ojeda to launder the money being
generated by his illegal activities.”
ER:291.
government’s request.
9
The court again authorized the
9.
The April 2007 wiretap.
The following month, a final round of wiretaps was authorized.
ER:296,
325. By now, the government had nearly nine months of wiretaps, multiple drug
seizures, various sources of supply, (including new sources of supply), new stash
house locations connected to the conspiracy, and agents had identified other couriers
and runners. SER:09-10.2 Moreover, traditional techniques were working. See
SER:48-52. And there was no indication traditional techniques could have been
used in light of the information gained since the previous application. Nonetheless,
the government pressed on, contending “we have not yet achieved the objectives of
the investigation” outlined in the eight previous applications. SER:20.
B.
Mr. Ojeda’s arrest and the pretrial proceedings.
On May 17, 2007, DEA agents executed a search warrant at Mr. Ojeda’s
home.
PSR:7.
During the search, agents found three firearms.
PSR:7.
They
also found a digital scale in his garage with methamphetamine residue on it.
PSR:7.
The agents did not discover drugs, drug packaging, large sums of cash,
pay-owe sheets, or other indicia of narcotics distribution.
Mr. Ojeda moved to suppress the fruits of the wiretaps.
ER:303.
He
argued “the wiretap authorized from the July 26, 2006 application and each of the
2
“SER” refers to the government’s supplemental excerpts of record.
10
successive applications were unlawful, and that the evidence should be suppressed
as ‘fruit of the poisonous tree.’ [Mr. Ojeda] contend[ed] that the affidavit of Agent
Jackson submitted in support of the application for an order authorizing the wiretap
failed to establish the requisite necessity under 18 U.S.C. § 2518(1)(c). [Mr. Ojeda]
asserted that the affidavit of Special Agent Jackson failed to make the required full
and complete statement of facts and presented no issue of danger as a justification
for the wiretap. [Mr. Ojeda] assert[ed] that ordinary investigative procedures
employed before the July 26, 2006 wiretap had produced overwhelming evidence to
prosecute the Andres Chavez-Chavez organization and that there was no genuine
need for the wiretap.”
ER:312-28, 429.
The district court denied the motion.
ER:135.
As for necessity, it held:
“that the affidavit in support of the July 26, 2006 application adequately
detailed the use of undercover agents and/or confidential informants,
search warrants and other traditional investigational procedures. The
issuing court properly concluded that ‘[i]t has been adequately
established that normal investigative procedures have been tried and
failed, reasonably appear unlikely to succeed if tried, or are too
dangerous to employ.’ The Court conclude[d] that application for
wiretapping was submitted in compliance with 18 U.S.C. § 2518(1)(c)
and that the issuing judge did not abuse his discretion in finding that the
affidavit in support of the initial wiretap met the statutory requirement
of ‘necessity’ set forth in Section 2518(1)(c)….[There are] “no
misleading statements or omissions have been identified that would
require an evidentiary hearing.”
ER:433 (internal citation omitted).
11
C.
The trial.
Mr. Ojeda was the only defendant who proceeded to trial.
As there were no
drug seizures connected to him, the government’s case was rooted in the wiretaps
and cooperating defendants.
ER:1593.
Four co-defendants testified against Mr.
Ojeda: David Chavez-Chavez, Joel Chavez-Chavez, Salvador Chavez-Chavez, and
Gerardo Casanova.
ER:807, 998, 1089, 1200.
Each co-defendant interpreted the
calls with Mr. Ojeda, explaining the otherwise innocuous language was code for
price, quantity, and quality of methamphetamine.
ER:807-1200, 1613-1619.
Agents and officers testified to surveillance of suspected drug deliveries consistent
with the intercepted calls.
On what was expected to be the last day of trial, Mr. Ojeda failed to appear.
ER:1342.
The jury convicted Mr. Ojeda in absentia of conspiracy to import
methamphetamine and conspiracy to distribute methamphetamine, 21 U.S.C. §§
952, 960, and 963; and 21 U.S.C. §§ 841 and 846.
ER:1591.
The jury further
found that the conspiracies involved at least 500 grams of a mixture and substance
containing methamphetamine, and that the quantity fell within the scope of Mr.
Ojeda’s agreement or was reasonably foreseeable by him.
ER:1592. Mr. Ojeda
was later arrested in Mexico and extradited to the United States for sentencing.
12
D.
The sentencing.
The presentence report recommended a 2-level aggravated role adjustment,
under U.S.S.G. § 3B1.1(c).
PSR:13.
The government, however, recommended a
4-level role enhancement under U.S.S.G. § 3B1.1(a), and a 360-month sentence.
ER:1607, 1626.
Mr. Ojeda objected to both the role enhancement and sentencing
recommendation.
ER:1604.
Mr. Ojeda’s sentencing submission highlighted his age (62), his personal
history and characteristics, work history and family ties, medical issues, and his lack
of any criminal record.
ER:1818.
objection to the role enhancement.
The district court overruled Mr. Ojeda’s
ER:1918, 1928-29.
The court stated, “the
record establishes that Ojeda exercised some control and organizational authority
over others, particularly [co-defendant] Casanova.”
ER:1929.
It concluded the
criminal activity was “otherwise extensive” because Mr. Ojeda directed the
importation of methamphetamine to distributors.
conspiracy involved five or more participants[.]”
ER:1929.
Moreover, “[t]he
Id.
Using the 2006 Guidelines manual, the court calculated a base offense level
of 38 (U.S.S.G. § 2D1.1(c)(1)); +2 for possession of a firearm (U.S.S.G. §
2D1.1(b)(1)); +2 for importation of methamphetamine (U.S.S.G. § 2D1.1(b)(4)); +4
for aggravating role (U.S.S.G. § 3B1.1(b)), and +2 for obstruction of justice.
13
(U.S.S.G. § 3C1.1).
ER:1946.
The adjusted offense level was 48.
In Criminal
History Category I, the resulting guideline range was life.
Turning to the § 3553(a) factors, the court focused its analysis on the
perceived sentencing disparity between Mr. Ojeda and co-defendant, Andres
Chavez-Chavez, the leader of the DTO.
received 210 months.
Mr. Chavez-Chavez pleaded guilty and
The court explained, “I have to be aware of what other
people received in this case who were at a lower level and who did -- who did
cooperate and didn’t go to trial; didn’t do a thing as this gentleman has.”
The court stated it found 20 years (240 months) reasonable.
ER:1950.
The court elaborated,
“I think anything less than 240 would create unwarranted sentencing disparity….
I
thought maybe the sentence should be higher, to have more of a gap between this
gentleman and the gentleman who received 210.”
ER:1950.
Again, the court questioned the disparity, “Is 240 enough? I mean, is it
enough, in light of what the other gentleman received?”
ER:1952.
The court
added, “my only concern was whether or not there’s enough gap between what [] his
sentence and what the other gentleman is, who, in my view, was not as involved and
did not do what he did.”
sentence.
ER:1952.
The court imposed a 240-month custodial
ER:1961.
14
E.
The appeal.
On appeal, Mr. Ojeda argued the district court erred in denying his motion to
suppress the wiretap applications.
He also argued the court erred at sentencing by
applying a +2 for possession of a firearm and a +4 for aggravating role, and the court
committed substantive error by imposing a sentence greater than necessary.
The Ninth Circuit affirmed, concluding: “the issuing court did not abuse its
discretion in determining that the necessity requirements for the July 2006
application were satisfied.”
APP:A at 3.
It held “because ‘the necessity
requirement is directed to the objective of the investigation as a whole, and not to
any particular person,’” the “application explained that even after conducting an
analysis of phone records and subscriber information, and performing database
searches to identify crossovers with other investigations, investigators had obtained
‘no information about communication content’ and were not even able to ‘state with
certainty who participated in a conversation.’” APP:A at 3 (citations omitted). The
court found Mr. Ojeda waived his challenge to the eight subsequent wiretap
applications, because he “failed to present those applications to the district court in
connection with his suppression motion.”
APP:A at 3.
With respect to his sentencing arguments, the Ninth Circuit held no abuse of
discretion in applying the firearms enhancement because “Agents found three
firearms in Ojeda’s home at the time of his arrest, one of which was within reach of
15
Ojeda’s bed.
They also found ammunition and a digital scale with
methamphetamine residue on it. Nor did the district court abuse its discretion in
applying the four-level enhancement for Ojeda’s role as an ‘organizer or leader’ of
the criminal activity. U.S.S.G. § 3B1.1(a). His role as a broker was analogous to
the defendant’s role in United States v. Avila, 905 F.2d 295 (9th Cir. 1990), in which
we affirmed the application of the enhancement.” APP:A at 4.
Last, the court held “[t]he district court considered the required factors,
including Ojeda’s age, and reasonably determined that Ojeda’s within-Guidelines
sentence was ‘sufficient, but not greater than necessary,’ to accomplish the statutory
sentencing goals.” APP:A at 5 (citation omitted).
This petition for a writ of certiorari follows.
REASON FOR GRANTING THE PETITION
Review is warranted to correct the Court of Appeals’ affirmance
The Court of Appeals erred in concluding the July 2006 wiretap application
established necessity. Moreover, it erred in concluding Mr. Ojeda’s challenges to
the subsequent wiretap applications were waived. Finally, the Court of Appeals
erred in affirming the sentencing enhancements and the 240-month sentence. For
the reasons below, this Court should grant certiorari to correct these errors.
16
A.
The Court of Appeals erred in its findings regarding the wiretap
applications.
There is a “statutory presumption against granting [] wiretap application[s.]”
United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985). “Title III [of the
Omnibus Crime Control and Safe Streets Act] prohibits electronic surveillance by
the federal government except under carefully defined circumstances.”
States v. Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001).
United
Thus, “[t]he procedural
steps provided in the Act require ‘strict adherence’ and ‘utmost scrutiny must be
exercised to determine whether wiretap orders conform to Title III.’” Id.
To this end, the statute imposes strict necessity requirements on both the
government and the issuing judge.
First, the government must ensure that “each
application include[s] a ‘full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they reasonably appear
to be unlikely to succeed if tried or to be too dangerous.’”
United States v.
Rodriguez, 851 F.3d 931, 937 (9th Cir. 2017) (quoting 18 U.S.C. § 2518(1)(c)).
Next, the issuing judge must independently “determine whether the wiretap
application contains facts that support a finding that ‘normal investigative
procedures have been tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous.’”
U.S.C. § 2518(3)(c)).
17
Blackmon, 273 F.3d at 1207 (quoting 18
“Taken together, §§ 2518(1)(c) and (3)(c) require a full and complete
statement establishing necessity.”
Id.
And “[e]ach wiretap application must
separately satisfy the necessity requirement.”
F.3d 1102, 1115 (9th Cir. 2005).
United States v. Gonzalez, Inc., 412
Its purpose is to prevent “wiretapping . . . in
situations where traditional investigative techniques would suffice to expose the
crime.”
Id.
To ensure compliance, “[t]he wiretap statute [] includes its own
exclusionary rule, requiring suppression of wiretap evidence that the government
obtains in violation of Title III” – e.g., without making a sufficient necessity
showing.
Rodriguez, 851 F.3d at 937; 18 U.S.C. § 2515.
When a defendant moves to suppress wiretap evidence, the reviewing “court
must examine [the application] to see whether it contains material misstatements or
omissions regarding necessity.”
Blackmon, 273 F.3d at 1207.
And “[i]f an
application contains inaccuracies or significant omissions, the court must determine
. . . whether a ‘reasonable [issuing] judge could have denied the application because
necessity for the wiretap had not been shown.’”
Id. at 1208 (citation omitted).
Pursuant to 18 U.S.C. § 2518(10)(a), “[i]f the motion is granted, the contents
of the intercepted wire or oral communication, or evidence derived therefrom, shall
be treated as having been obtained in violation of this chapter.”
And 18 U.S.C. §
2515 provides: “Whenever any wire or oral communication has been intercepted, no
part of the contents of such communication and no evidence derived therefrom may
18
be received in evidence in any trial . . . if the disclosure of that information would
be in violation of this chapter.”
527 (1974).
See also United States v. Giordano, 416 U.S. 505,
Thus, “[b]ecause the necessity requirement is a component of Title III,
and because suppression is the appropriate remedy for a violation under Title III,
when a warrant application does not meet the necessity requirement, the fruits of any
evidence obtained through that warrant must be suppressed.”
United States v. Rice,
478 F.3d 704, 710 (6th Cir. 2007).
1. The July 2006 application did not establish necessity.
The July 2006 affidavit fail to establish that normal investigative procedures
were tried and failed, were unlikely to succeed, or were too dangerous to try as to
Mr. Ojeda.
To show necessity, the agent must include a discussion of normal
investigative procedures against all target subjects, including those whose phones
they did not seek to intercept.
(9th Cir. 2008).
See United States v. Rivera, 527 F.3d 891, 903 n.2
Here, however, the July 2006 affidavit omits almost any
discussion of normal investigative procedures against Mr. Ojeda.
In the affidavit, Agent Jackson stated that the two Targets, Carlos Aviles and
Andres Chavez-Chavez, have “both called (619) 207-1113, subscribed to ‘Chava
2000,’ San Ysidro California.”
ER:399.
Further, the application states the
government subpoenaed toll records and subscriber information for Chava 2000’s
phone.
ER:414.
However, results of the subpoena remained a mystery.
19
The
application did not provide any results for Chava 2000’s phone, including what
subscriber information was actually obtained.
Moreover, it did not state if any
other traditional investigative techniques were used for Chava 2000’s phone, such
as attempts to obtain pen registers and/or trap and trace devices on that phone.
Mr. Ojeda does not disagree with the Court of Appeals that “the necessity
requirement is directed to the objective of the investigation as a whole[.]”
at 3 (citation omitted).
APP:A
Indeed, the purpose of these wiretaps was to investigate and
obtain evidence against the whole Chavez-Chavez organization.
As such, the
government was required to give a full and complete statement of its investigation
into the conspirators, including Mr. Ojeda.
Rivera, 527 F.3d 891, is instructive.
In analyzing the necessity of the wiretap
applications on appeal, the court noted that the “purpose of the wiretap was to obtain
evidence against the entire Rivera [Drug Trafficking] organization.”
Id. at 903 n.2.
Therefore, “we consider in our necessity analysis all the DEA’s pre-wiretap
investigative efforts directed at the Rivera organization -- not only those efforts
directed at the users of the two telephones for which the wiretap was sought.” Id.
(emphasis added).
The same is true here. Because the “purpose of the wiretap was to obtain
evidence against the entire [Chavez-Chavez] organization”
the Court must
consider “pre-wiretap investigative efforts directed at the [Chavez-Chavez]
20
organization -- not only those efforts directed at the users of the two telephones for
which the wiretap was sought.” Id. at 903 n.2. This includes the investigation, or
lack thereof, into Mr. Ojeda. See also United States v. Carneiro, 861 F.2d 1171,
1182 (9th Cir. 1988) (“there must be a showing of necessity with respect to each
telephone and conspirator.”) (Emphasis added). Thus, it cannot be said that the
necessity requirement is satisfied with respect to “the objective of the investigation
as a whole[.]” United States v. Reed, 575 F.3d 900, 991 (9th Cir. 2009).
2. Mr. Ojeda’s challenge to the remaining wiretaps was not waived.
The Ninth Circuit concluded Mr. Ojeda waived his challenge to the remaining
wiretaps because he did not “present the applications to the district court in
connection with his suppression motion.”
APP:A at 3.
However, before the
district court, he specifically argued “the wiretaps authorized beginning with July
26, 2006 application and each of the successive applications, were unlawful.”
ER:328 (emphasis added). The motion then addressed each wiretap application in
turn, with the exception of April 2007, which counsel flagged for the district court
as not being provided in discovery. ER:323-26.
The law is clear: “once a federal claim is properly presented, a party can make
any argument in support of that claim; parties are not limited to the precise
arguments they made below.”
Yee v. City of Escondido, 503 U.S. 519, 534 (1992);
United States v. Wahid, 614 F.3d 1009, 1016 (9th Cir. 2010) (“claims, not
21
arguments, are preserved [for] appeal.”); United States v. Lillard, 935 F.3d 827, 833
(9th Cir. 2019) (finding claims preserved because the issues were “brought to the
district court’s attention.”).
Again, Mr. Ojeda consistently maintained that each
wiretap application did not establish necessity.
ER:323-24. At a minimum,
Mr. Ojeda’s arguments were properly before the Court of Appeal for plain error
review.
See Fed. R. Crim. P. 52(b).
Certainly, serving a 240-month sentence as
a result of a conviction based almost entirely on unlawful wiretaps would affect
Mr. Ojeda’s substantial rights.
See id.
As such, the Court of Appeals should have
considered Mr. Ojeda’s claims.
3. The August 2006 to October 2006 applications fail to establish necessity.
Turning to the August 2006 affidavit, by then, Chava 2000 was identified as
Mr. Ojeda – but there is no mention of how this occurred.
Moreover, in the
necessity section, Agent Jackson failed to discuss any normal investigative
procedures that had been tried against Mr. Ojeda (although such techniques were
discussed in reference to the other targets, such as Andres, David, and Joel ChavezChavez).
ER:30-37.
And the same applies to the September 2006 affidavit.
Although Mr. Ojeda was listed a subject, there was no meaningful discussion of
traditional techniques used to further the investigation. ER:63 (Mr. Ojeda was only
mentioned once in the necessity section, noting that agents conducted surveillance
on a meeting between David Chavez-Chavez and Mr. Ojeda).
22
As for the October 2006 affidavit, Mr. Ojeda was identified as a supplier of
narcotics for Andres Chavez-Chavez.
physical surveillance.
ER:105.
As such, agents had begun almost daily
Agents could have used additional administrative
subpoenas, pen registers and trap and trace devices on Mr. Ojeda’s phone, or secured
GPS tracking warrants on his phone or his car, in combination with physical
surveillance.
This did not happen, and we are left in the dark as to why these
techniques were not tried, were unlikely to succeed, or were too dangerous.
Taken together, these omissions speak to both what was done, and what could
have been done, with traditional investigative techniques.
The applications did not
contain a “full and complete statement as to whether or not other investigative
procedures have been tried and failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous.”
Gonzalez, Inc., 412 F.3d at 1112-15.
18 U.S.C. § 2518(1)(c)); see also
Moreover, the omissions undercut any
“finding that ‘normal investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
Blackmon, 273 F.3d at 1207 (quoting 18 U.S.C. § 2518(3)(c)).
Accordingly, a
reasonable judge considering the omissions would have concluded the wiretap was
not necessary to accomplish the investigative goals.
were material.
See Carneiro, 861 F.2d at 1182.
23
The omissions, therefore,
4. The November 2006 to April 2007 wiretaps were unnecessary.
And even if there was some necessity at the outset – and there was not –
certainly the next set of wiretaps (group two, November 2006 to April 2007) were
unnecessary.
“Each wiretap application must separately satisfy the necessity
requirement.”
Gonzalez, Inc., 412 F.3d at 1115.
But here, the second group of
applications piggy-backed off the previous applications.
Each application
identified traditional techniques that were working, but quickly ruled them out by
virtue of previous unsuccessful techniques from other targets.
ER:152, 200, 251.
Certainly, by the December 2006 wiretap, the government had enough
evidence to prosecute several members of the conspiracy.
In addition to months of
intercepted calls and physical surveillance, it had recently seized a ½ pound of
methamphetamine from David Chavez-Chavez, which was being delivered another
subject of the investigation.
ER:179.
Moreover, agents seized 2 pounds of
methamphetamine at the border from, a known courier for another of the DTO’s
sources of supply.
ER:179.
Further, agents determined that Salvador Chavez-
Chavez distributed to his brothers Joel and David.
As to Mr. Ojeda, previous
intercepts provided evidence of his involvement in the conspiracy.
See, e.g. ER:88-
89 ER:182, ER:184.
Even with nine months of wiretaps, the agents never learned all the major
customers, all the locations where the targets sold or stored drugs, or all the people
24
“known and unknown” who were involved. ER:639. But this lack of omniscience
does not show necessity. To the contrary, it evinces impossibility. And a wiretap
cannot be necessary to achieve an impossible goal.
Thus, because the previous wiretaps, along with traditional law enforcement
techniques, already proved a conspiracy, the group-two wiretaps failed the necessity
requirement.
See United States v. Castillo-Garcia, 117 F.3d 1179, 1196 (10th Cir.
1997) (“the government may not simply move swiftly from wiretap to wiretap.
Rather, under Title III, it must always paus[e] to consider whether normal
investigative procedures could be used effectively, particularly in light of any
evidence obtained as a result of each succeeding wiretap.”) (internal citation and
quotations omitted).
See also Blackmon, 273 F.3d at 1211 (“The government may
not cast its investigative net so far and so wide as to manufacture necessity in all
circumstances. Doing so would render the [necessity] requirement[] [a] nullit[y].”).
5. The error was not harmless.
“Review for harmless error requires not only an evaluation of the remaining
incriminating evidence in the record, but also the most perceptive reflections as to
the probabilities of the effect of [the] error on a reasonable trier of fact.
We must
be convinced that the improperly admitted evidence did not contribute to the verdict,
and the government bears the burden of showing the harmlessness of the error[.]”
25
United States v. Job, 871 F.3d 852, 865 (9th Cir. 2017) (internal citations and
quotations omitted).
Here, the government did not meet its burden.
The evidence derived from the applications collectively resulted in
Mr. Ojeda’s arrest and search of his home, where the agents discovered firearms,
cash, and a scale with methamphetamine residue.
More directly, the trial was
focused nearly entirely on the wiretap recordings.
As stated, there were no drug
seizures connected to Mr. Ojeda.
Unsurprisingly, the wiretap evidence made up
much of the prosecutor’s closing argument, which used the calls to make seemingly
innocuous conduct drug-related.
ER:1495, 1593-98.
Therefore, the prejudice
was manifest.
B. The Court of Appeals erred in affirming Mr. Ojeda’s 240-month
sentence.
There is another reason to correct the Ninth Circuit’s affirmance.
district court failed Mr. Ojeda at sentencing.
The
First, the district court erred in
imposing two different sentencing enhancements, a two-level firearms enhancement
and a four-level leadership-role enhancement.
This failure to calculate the
Guidelines correctly was a substantial procedural error requiring reversal.
Second,
the district court committed substantive error by imposing a 240-month sentence
after giving undue weight to a co-defendant’s sentence of 210-months. This sentence
was substantively unreasonable for a 61-year old nonviolent first-offender.
26
1. The Court of Appeals erred in affirming a firearms enhancement.
Using the 2006 Guidelines, the district court calculated the applicable
sentencing guidelines.
It applied a two-level increase for possession of a firearm
and a four-level increase for aggravated role.
enhancements were unwarranted.
ER:1946.
As stated, these
Under section 2D1.1(b)(1) (2006), “[i]f a
dangerous weapon (including a firearm) was possessed, increase by 2 levels.” The
enhancement applies “if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.” Id. at cmt. n.3.
Here, three firearms were found in Mr. Ojeda’s home at the conclusion of the
investigation. PSR:10; ER:1801-02. One of the firearms, a rifle, was found in the
master bedroom within arm’s reach of the bed. ER:1802. The district court held
“the firearms enhancement is warranted because Ojeda was a source of supply or
distributed pounds of methamphetamine directly or indirectly for several years to
drug trafficking organizations in San Diego. Ojeda was collecting large amounts of
money for the pounds of methamphetamine that he sold on a regular basis.”
ER:1927.
Moreover, the court explained, “tools of the trade” were found at Mr. Ojeda’s
home, including multiple cell phones, a digital scale that tested positive for
methamphetamine, three firearms, and ammunition.
ER:1927.
It concluded,
“Ojeda has not carried his burden of proving that it was clearly improbable that he
27
possessed a firearm in connection with the offense.”
ER:1928.
However, on
these facts, the district court erred.
The government failed to establish Mr. Ojeda possessed any firearms in
connection with the offense.
Despite a lengthy investigation including ten months
of wiretaps, there was no testimony or intercepted calls even remotely related to
violence, firearms, or violence.
Additionally, there was no nexus between the firearms, the offense conduct,
and Mr. Ojeda’s home.
“There was no testimony Mr. Ojeda used his home to store
or deal drugs or drug proceeds, conduct drug-related meetings with confederates, or
facilitate any drug dealing.
The search turned up no bulk currency, pay-owe sheets,
packaging materials, or methamphetamine.”
ER:1604.
The only item it found of
any potential significance was a small digital scale found on a shelf in the garage,
where forensic chemists found specks of methamphetamine on it.
PSR:10.
Here,
there was not a shred of evidence – from chemists or other witnesses – connecting
Mr. Ojeda to the scale, or the scale to the charged conspiracy.
Without any of the
items traditionally found at the homes of drug traffickers, the scrapings on a digital
scale in the garage hardly creates a sufficient nexus.
28
ER:1604.
As such, the weapons may have been present in the house, but were not
“present” in the offense.
U.S.S.G. § 2D1.1, cmt. n.3 (2006). 3 Therefore, the
firearms enhancement cannot apply.
2. The Court of Appeals erred in affirming the four-level, aggravating-role
enhancement.
The Court of Appeals also erred in affirming the district court’s rejection of
the PSR’s recommendation and application of a four-level aggravating-role
enhancement under U.S.S.G. § 3B1.1(a).
“A determination of the defendant’s role
in the offense is a factual finding reviewed for clear error, but questions about a
district court’s interpretation or application of [the role provision] are reviewed de
novo.”
United States v. Diaz-Rios, 706 F.3d 795, 798 (7th Cir. 2013) (citation
omitted, emphasis added); see also United States v. Rodriguez-Castro, 641 F.3d
1189, 1192 (9th Cir. 2011).
Despite the evidence that Mr. Ojeda arguably
exercised “some control” over only Mr. Casanova, the district court punished him
as a “leader or organizer.” In doing so, it misapplied section 3B1.1.
Mr. Ojeda acknowledges decisions indicating the enhancement applies if the
weapons were possessed during the conspiracy. See, e.g., United States v. na, 146
F.3d 712, 715 (9th Cir. 1998); United States v. Stewart, 926 F.2d 899, 901 (9th Cir.
1991)). Here, the search occurred at the very end of the investigation, and there
was no testimony about how long the firearms were in the house.
29
3
a. Application of the role enhancement under section 3B1.1 requires
the district court to consider the enumerated factors.
The aggravating-role enhancement provides: “If the defendant was an
organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive, increase by 4 levels, [i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive, increase by 3 levels, [i]f the defendant
was an organizer, leader, manager, or supervisor in any criminal activity other than
described in (a) or (b), increase by 2 levels.” U.S.S.G. § 3B1.1.
The application notes further instruct, “[t]o qualify for an adjustment under
this section, the defendant must have been the organizer, leader, manager, or
supervisor of one or more other participants.” U.S.S.G. § 3B1.1 cmt. n.2. And
“[i]n distinguishing a leadership and organizational role from one of mere
management or supervision, titles such as ‘kingpin’ or ‘boss’ are not controlling.”
U.S.S.G. § 3B1.1 cmt. n.4.
Rather, “the court should consider” the following non-exhaustive factors: (1)
“the exercise of decision making authority,” (2) “the nature of participation in the
commission of the offense,” (3) “the recruitment of accomplices,” (4) “the claimed
right to a larger share of the fruits of the crime,” (5) the “degree of participation in
planning or organizing the offense,” (6) “the nature and scope of the illegal activity,”
30
and (7) “the degree of control and authority exercised over others.”
Id.; see also,
United States v. Ingham, 476 F.3d 706, 711 (9th Cir. 2007) (“The district court
should be [] guided by the [enumerated] factors” in application note four).
Moreover, to ensure proper analysis and permit meaningful appellate review,
“[w]hen determining whether a defendant’s base offense level should be enhanced
due to his alleged leadership role in the offense, it is essential that the court make
findings regarding the factors mentioned in the guidelines and state its reasons for
its determination.” United States v. Odom, 13 F.3d 949, 959 (6th Cir. 1994)
(emphasis added); see also United States v. Stevens, 985 F.2d 1175, 1184 (2d Cir.
1993).
b. The district court failed to consider the enumerated factors or make
the requisite findings.
Here, the district court acknowledged the factors it must consider, ER:192223, but it made no “findings regarding the factors mentioned in the guidelines.”
Odom, 13 F.3d at 959.
Instead, citing one intercepted call introduced at trial, the
court found “the record establishes that Ojeda exercised some control and
organizational authority over others, particularly Casanova.”
ER:1929.
In
particular, Mr. Ojeda told Mr. Casanova to “get ready” to receive two pounds of
methamphetamine.
Id.
31
Without citing any additional evidence, the court noted the offense was
“otherwise extensive” for role purposes because “Ojeda directed the importation of
pound quantities of methamphetamine from Mexico by courier to transfer the
methamphetamine to several distributors in the San Diego area and the pickup and
transfer of substantial sums of drug proceeds.”
ER:1929.
highlighted there were more than five participants.
ER:1929.
The court also
The court’s brief comments shed no light on its analytical process or the
standard it applied.
This was error.
Specifically, the district court failed to
“identif[y] and appl[y] the correct legal rule to the relief requested.”
United States
v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). And that error requires
reversal independent of the ultimate conclusion.
See id.
Indeed, because the
court of appeal “necessarily review[s] the district court’s decision-making process,
not simply whether the decision resulted in a permissible outcome,” it cannot affirm
unless it is “certain [] the district court applied the proper law [and] considered all
the relevant factors[.]”
United States v. Mancinas-Flores, 588 F.3d 677, 684 (9th
Cir. 2009) (emphasis added).
Here, such certainty is impossible.
analysis.
The record reveals no meaningful
The Ninth Circuit, therefore, “cannot know whether the district court
applied the correct law or considered all the relevant factors.”
32
Id.
Accordingly,
because “the district court’s decision-making process” was flawed and the requisite
findings are absent, the aggravating-role enhancement cannot stand.
See id.
Strong support for this conclusion comes from the Sixth Circuit’s decision in
Odom.
There, the defendants were convicted of conspiracy to distribute cocaine.
See 13 F.3d at 954.
At trial, there was evidence one of the defendants, Mr. Bulger,
was a source of supply, the recipient of significant drug proceeds, and second in “the
sales hierarchy,” with others below him.
Id. at 953-54.
“The district court
enhanced Bulger’s base offense level [by four levels] under U.S.S.G. § 3B1.1(a),”
finding he was an organizer or leader.
Id. at 959.
On appeal, the Sixth Circuit reversed, explaining, “[t]he [district] court made
no findings regarding the factors relevant to the leadership enhancement, and set
forth no reasons for its conclusion that the enhancement should be imposed. This is
not enough to review.”
Id.
The court thus “vacate[d] Bulger’s sentence and
remand[ed] for a hearing on the imposition of the leadership enhancement.”
Id.
See also United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995) (remanding
for the district court to make more specific factual findings because “[s]imply
‘considering the defendant’s role in the offense’ without advancing a factual basis
to support the enhancement does not satisfy the requirements of section 3B1.1.”).
Here, the district court failed to make sufficient findings regarding the factors
relevant to the leadership enhancement.
33
Telling a confederate to “get ready” to
receive drugs is hardly indicative of a leadership role.
This Court should grant
certiorari to reconsider the Ninth Circuit’s affirmance.
c. The relevant factors demonstrate, at most, Mr. Ojeda was a
manager or supervisor, not an organizer or leader.
Separately, reversal is also required because the relevant factors demonstrate
that, at most, Mr. Ojeda was a manager or supervisor, not an organizer or leader – a
meaningful distinction because only organizers and leaders are eligible for a fourlevel enhancement.
As the court noted, “the record establishes that Ojeda exercised
some control and organizational authority over others.”
added).
ER:1929 (emphasis
This is entirely consistent with the Guideline’s methodology for
determining a defendant’s role, and case law interpreting it.
See United States v.
Chau, 293 F.3d 96, 103 (3d Cir. 2002) (“a manager or supervisor is one who
exercises some degree of control over others involved in the offense.”) (internal
citations and quotation marks omitted).
Thus, to the extent any role enhancement
was warranted, it should have been two levels under section 3B1.1(c) as
recommended in the PSR.
At worst, it could have been three levels under section
3B1.1(b).
As to the Guidelines’ rubric, the first factor looks to “the exercise of decision
making authority.” U.S.S.G. § 3B1.1 cmt. n.4. Mr. Ojeda’s authority was limited.
Mr. Ojeda had no decision-making authority over the Chavez-Chavez brothers’
34
DTOs. And with respect to Mr. Casanova, Mr. Ojeda merely told Mr. Casanova,
an independent operator, to “get ready” to receive a delivery. ER:1604. This
evinces at most a minimal degree of control over Mr. Casanova for that particular
drug transaction.
The second and third factors – “the nature of participation in the commission
of the offense” and whether he recruited accomplices – also points to Mr. Ojeda
having at most a supervisory role. There was no evidence Mr. Ojeda “recruit[ed] []
accomplices.” The co-defendant Chavez-Chavez brothers, worked for their own
organizations. ER:1614-17. And Mr. Casanova worked for himself. ER:1604.
With respect to his financial gain – the fourth factor – Mr. Ojeda hardly lived
like a kingpin. Even at $10,000 per pound of methamphetamine, the net profit
would have been minimal. ER:1826. Nor was there any evidence Mr. Ojeda
insisted on, or received, a greater share than his codefendants. The search of his
house did not reveal cash hordes or expensive purchases, and Mr. Ojeda was
represented by appointed counsel.
ER:1934-35.
The fifth factor is “the degree of participation in planning or organizing the
offense.” Even under the government’s theory, Mr. Ojeda was a “broker between
owners of methamphetamine in Mexico and sellers like the Chavez-Chavez brothers
in the United States.” ER:1824. In other words, Mr. Ojeda simply fulfilled orders
35
of the Chavez-Chavez brothers via securing methamphetamine from a Mexican
source of supply. A broker is not an organizer.
Further, the Ninth Circuit’s conclusion that Mr. Ojeda’s role as a broker was
analogous to the defendant’s role in United States v. Avila, 905 F.2d 295 (9th Cir.
1990) is misplaced.
See APP:A at 4.
There, the defendant was involved in three
different conspiracies, with multiple sources of supply and conducted transactions
with numerous defendants.
Id. at 298-99.
Here, Mr. Ojeda’s role as a broker does
not justify the four-level enhancement. See United States v. Reneslacis, 349 F.3d
412, 418 (7th Cir. 2003) (“narcotics brokers do not deserve a four-level adjustment
under § 3B1.1(a).”); see also United States v. Miranda, 248 F.3d 434, 446-447 (5th
Cir. 2001) (“three-level increase for being managers” was warranted for “defendant
who managed conspiracy’s marijuana shipments from Mexico to Texas, and other
defendant who controlled sales of illegal drugs at three different locations”)
(emphasis added).
As to the sixth factor, “the nature and scope of the illegal activity,” this was a
lengthy investigation, which started out with a primary focus on the Chavez-Chavez
brothers. Indeed, while Mr. Ojeda was listed as a subject (along with dozens of
others) he was not a target of the investigation until months into the investigation.
And within the scope of the drug trafficking organizations, Mr. Ojeda was a broker.
36
The final factor – “the degree of control and authority exercised over others”
– dovetails with the first. U.S.S.G. § 3B1.1 cmt. n.4. The government indicted 19
people in connection with this case. Of those, Mr. Ojeda had some degree of control
only over Mr. Casanova. This factor, therefore, like the rest, shows at most he was
a manager not a leader an organizer.
Accordingly, had the district court undertaken the correct analysis and applied
the enumerated factors, it would have either declined to apply a role enhancement,
or applied a lesser enhancement.
3. The enhancement errors were not harmless.
The district court’s sentencing errors, alone or in combination, prejudiced
Mr. Ojeda.
Here, proper application of sections 2D1.1 and 3B1.1 could have
resulted in a lower guideline range. This, in turn, could have – and certainly should
have – resulted in a lesser sentence. See United States v. Gunning, 401 F.3d 1145,
1149 (9th Cir. 2005) (when “a district court could have lowered a defendant’s
sentence, [this Court] ha[s] presumed prejudice and remanded, even if [it] doubted
that the district court would have done so.”); United States v. Wijegoonaratna, 922
F.3d 983, 992 n.3 (9th Cir. 2019) (“[W]e consider [a defendant’s] challenge even
though his sentence was below both [] Guidelines ranges because we must remand
if the district court failed to calculate the proper range.”).
37
Accordingly, the sentence should be vacated and the matter remanded for
reconsideration of the enhancements. See United States v. Molina-Martinez, 136 S.
Ct. 1338, 1345 (2016) (“When a defendant is sentenced under an incorrect
Guidelines range – whether or not the defendant’s ultimate sentence falls within the
correct range – the error itself can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the error.”).
4. The Court of Appeals erred in affirming the substantive reasonableness of
Mr. Ojeda’s sentence.
If the Court disagrees with Mr. Ojeda’s procedural arguments, it should
nevertheless correct the affirmance of his 240-month sentence.
A sentence is
substantively unreasonable if it is “‘greater than necessary’ to accomplish [the
statutory] sentencing goals.”
United States v. Crowe, 563 F.3d 969, 977 n.16 (9th
Cir. 2009) (internal citation omitted).
Ultimately, “the touchstone of
‘reasonableness’ is whether the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a).”
Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).
United States v.
In determining substantive
reasonableness, the court “consider[s] the totality of the circumstances.”
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008).
turns on the particulars of each case.”
United
And its review “necessarily
United States v. Ressam, 679 F.3d 1069,
1088 (9th Cir. 2012) (en banc).
38
Mr. Ojeda’s argument is straightforward.
than necessary.
A two-decade sentence is greater
See Crowe, 563 F.3d at 977 n.16.
While Mr. Ojeda recognizes
he received a below-guidelines sentence, the “overarching statutory charge for the
district court is to ‘impose a sentence sufficient, but not greater than necessary.’”
Carty, 520 F.3d at 991 (quoting 18 U.S.C. § 3553(a)).
Here, the court imposed a sentence greater than necessary because it felt
constrained by a co-defendant’s 210-month sentence and a desire to exceed it.
ER:1950. There is a reasonable likelihood, however, that the court would have
imposed a lesser sentence under the 3553(a) factors if it was not operating under an
improper belief that 210 months was the floor. See United States v. Perez-Pena,
453 F.3d 236, 243 (4th Cir. 2006) (“[C]omparing the sentences of defendants who
helped the Government to those of defendants who did not . . . is comparing apples
and oranges[.]”).
Because of the undue weight the district court put on the sentence disparity,
and in light of the remaining 3553(a) factors, his age and his lack of criminal history,
a 240-month sentence – essentially a life sentence – was greater than necessary. As
the Ninth Circuit recognizes, “‘[t]here is a worthy tradition that death in prison is not
to be ordered lightly, and the probability that a convict will not live out his sentence
should certainly give pause to a sentencing court.’”
39
United States v. Yong Lee, 725
F.3d 1159, 1169 (9th Cir. 2013) (citation omitted).
Although there is a range of
reasonableness, here, de facto "life" is not within it.
Accordingly, if for no other
reason, correcting the Ninth circuit's affirmance is necessary to "give more serious
consideration to whether to impose a sentence that effectively condemns a [64]-yearold [man] ... to .death in prison for [violations] of the nature involved."
CONCLUSION
The Court should grant the petition for a writ of certiorari.
espectfull?t(J::____
Dated:
July 6, 2020
ARREN
rren & urstein
West Broadway, Suite 240
San Diego, CA 92101
(619) 234-4433
40
Id.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.