UNITED STATES оf America, Plaintiff-Appellee, v. Armando LABRADA-BUSTAMANTE, Defendant-Appellant. United States of America, Plaintiff-Appellee-Cross-Appellant, v. Catalino Baranda-Gallardo, Defendant-Appellant-Cross-Appellee. United States of America, Plaintiff-Appellee, v. Roberto Duarte-Cruz, Defendant-Appellant.
Nos. 04-30082, 04-30159, 04-30189, 04-30175
United States Court of Appeals, Ninth Circuit
Filed Nov. 10, 2005
Argued and Submitted April 4, 2005.
James E. Egan, Kennewick, Washington, for appellant Roberto Duarte-Cruz.
Sam Swanberg, Law Offices of Sam Swanberg, Kennewick, Washington, for appellant/cross-appellee Catalino Barаnda-Gallardo.
K. Jill Bolton, Assistant United States Attorney, Yakima, Washington, for appellee/cross-appellant United States of America.
Appeal from the United States District Court for the Eastern District of Washington; Edward F. Shea, District Judge, Presiding. D.C. Nos. CR-03-02098-EFS, CR-03-02099-EFS, CR-03-02097-EFS.
Before: GOULD, TALLMAN, and RAWLINSON, Circuit Judges.
RAWLINSON, Circuit Judge:
Defendants Armando Labrada-Bustamante (Labrada), Roberto Duarte-Cruz (Duarte), and Catalino Baranda-Gallardo (Baranda) were convicted by a jury in the United States District Court for the Eastern District of Washington of conspiracy to distribute a controlled substance, methamphetamine (meth), in violation of
I
FACTS AND PROCEDURAL HISTORY
In February of 2003, Drug Enforcement Agent Alonzo Garza was contacted by an informant, who indicated that an individual in Phoenix, Arizona, was willing to bring approximately forty pounds of meth to
Labrada told Agent Garza that he could supply the forty pounds of meth, but, because the two did not know each other, he preferred to start with five pounds. Labrada quoted Agent Garza a price of $12,000 per pound—more expensive than the meth in Yakima because, according to Labrada, it was pure and coming dirеctly from Mexico. Labrada also stated that Agent Garza could “cut it up to four times,” making four pounds out of one.
Terrazas was subsequently arrested in Yakima during a meth transaction not involving Labrada or Duarte. Choosing to cooperate with the government, he contacted Duarte on behalf of Agent Garza to arrange a delivery of meth to Agent Garza in Yakima. Agent Garza and Duarte spoke several times to discuss the delivery of the five pounds of meth. Duarte told Agent Garza during one conversation that he could provide him with ice methamphetamine (ice) as wеll. They agreed that one pound of ice would be delivered in addition to the five pounds of meth. Although delivery was arranged, the drug deal was never consummated. The two sides lost contact until Duarte phoned Agent Garza to inquire whether Agent Garza was still interested in buying the meth. When Agent Garza replied that he was, the sale of five pounds of meth for $12,000 was again agreed upon.
Duarte called Agent Garza again because, according to Duarte, his “source” wanted to talk. Agent Garza identified that source as Labrada. Labrada indicated that he had a “hand” and “five fingers“—drug lingo fоr five pounds of product. Duarte and Labrada drove to Las Vegas to pick up Baranda, who then drove the three to Portland, Oregon. From Portland, Duarte contacted Agent Garza to negotiate a meeting locale. Agent Garza, Duarte, and Labrada eventually met at a Denny‘s in Union Gap, Washington. Baranda remained in a motel room rented by the defendants.
During the meeting, possible future transactions were discussed, and Labrada asked Agent Garza if the agent could supply a car with Washington plates equipped with a hidden compartment. The discussion eventually shifted to how the present transaction would be finalized. Labrada assured Agent Garza that he would not abscond with the money, even offering to be held by Agent Garza for ransom. After numerous unsuccessful attempts to reach mutually agreeable terms, the meeting concluded. Even as they were leaving, however, Labrada attempted to consummate a deal. He told Agent Garza that there was more meth in Phoenix and that if things went well, he could simply make a call and the product would be brought up to Yakima.
After the meeting concluded, the Drug Enforcement Administration (DEA) instructed the Washington State Patrol to stop defendants’ car.1 DEA Agent Meliton Rodriguez, the local agent overseeing the investigation and undercover operation, arrived on the scene a few minutes after the stop. Agent Rodriguez, a native Spanish speaker, individually advised each defendant of his Miranda2 rights in Spanish using a DEA Form 13A.3 Duarte and La-
The defendants were taken to the DEA offices in Yakima, where Rodriguez separately interviewed each one. During questioning, Baranda admitted that he knew he was going to Washington to be involved in a drug deal. Duarte did not respond when told that the DEA knew he was involved in a drug deal. However, when asked if it was his intent to simply steal the money from Agent Garza, Duarte responded that it was not. Labrada admitted to Agent Rodriguez that he was in Yakima to do a drug deal with Agent Garza. When asked about the location of the meth, Labrada indicated that it was with a man nаmed Ernesto, the source supplier of meth in Yakima. However, Ernesto was never located.
Duarte, Labrada, and Baranda were charged with one count of conspiracy to distribute a controlled substance in violation of
Agent Gilliam, who was present during the interviews, corroborated Agent Rodriguez‘s testimony. Agent Gilliam testified that no defendant expressed any confusion about what those rights meant. The district court specifically found that Agent Rodriguez read each defendant his rights at the initial stop, summarized those rights at the station, and elicited a response that each defendant understood his rights. After considering the totality of the circumstances, the court ruled that the defendants’ statements were vоluntary, and the motion to suppress was denied.
After a three-day jury trial, the defendants were convicted as charged. For sentencing purposes, the court used the agreed upon amount of meth—five pounds—resulting in a base offense level of 34 and a sentence range of 151 to 188 months.
Labrada now challenges the district court‘s denial of his motion to suppress and his Rule 29 motion based on the sufficiency of the evidence. He also contends that he received ineffective assistance of counsel during sentencing and that the district court violated his Sixth Amend-
The government cross-appeals Baranda‘s sentence on the basis that the district court erred in allowing Baranda to collaterally challenge his prior conviction.
II
DISCUSSION
A. Labrada-Bustamante
1. Motion to suppress
Labrada challenges the district court‘s denial of his motion to suppress, asserting that he could not have voluntarily or knowingly waived his rights because, as a Mexican national, he was not familiar with the United States’ justice system and did not understand what his rights meant.
A decision on a motion to suppress is reviewed de novo. United States v. Charley, 396 F.3d 1074, 1079 (9th Cir. 2005). “We review the voluntariness of a waiver of Miranda rights de novo.” United States v. Younger, 398 F.3d 1179, 1185 (9th Cir. 2005) (citation omitted). “Whether the decision was knowing and intelligent is reviewed for clear error.” Id. (citation omitted).
The validity of a Miranda waiver depends on the totality of the circumstances and whether the defendant “was aware of the nature of the right being
The district court credited Agent Rodriguez‘s testimony that each defendant stated awareness and understanding of his rights. We give “special deference” to credibility determinations and are “especially reluctant” to set аside such determinations. United States v. Becerra-Garcia, 397 F.3d 1167, 1172 (9th Cir. 2005) (citations omitted). In addition, Labrada acknowledged on cross-examination that he understood what it meant to have the right to remain silent.
Agent Rodriguez was not required to explain to Labrada what the Miranda rights meant. The fact that Labrada might not be familiar with the United States’ form of justice is merely one factor to be considered. See, e.g., United States v. Frank, 956 F.2d 872, 877 (9th Cir. 1991), as amended, (stating that “[w]hen considering the totality of the circumstances, relevant factors include age, experience, education, background and intelligence.“) (citation, internal quotation marks, and alteration omitted). Considering the totality of the circumstances—including Agent Rodriguez‘s testimony and Labrada‘s admission that he understood his rights—the district court‘s finding that Labrada knew and understood his rights is not clearly erroneous.
Labrada‘s Miranda waiver was also voluntary. There was no evidence in the record of “police overreaching,” and both agents testified that no threats or promises were made to any of the defendants. See United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997) (stating that “the voluntariness of a waiver has always depended on the absence of police overreaching.“) (citation and internal quotation marks omitted). Thеrefore, we hold that
2. Sufficiency of the evidence
Labrada contends that because there was no meth ever found on him or his codefendants, and because he continually maintained that his true intent was to steal money, not sell meth, the evidence was insufficient to support the jury‘s finding that he intended to distribute a controlled substance.
“We review de novo the denial of a motion for a judgment of acquittal based on the alleged insufficiency of the evidence.” United States v. Pearson, 391 F.3d 1072, 1075 (9th Cir. 2004) (citation omitted). “[V]iewing the evidence in the light most favorable to the government, we must detеrmine whether any rational trier of fact could have found, beyond a reasonable doubt, the requisite elements of the offense charged.” Id. (citation omitted).
“To establish a drug conspiracy, the government must prove: 1) an agreement to accomplish an illegal objective and 2) the intent to commit the underlying offense.” United States v. Romero, 282 F.3d 683, 687 (9th Cir. 2002) (citation omitted). In this case, the underlying offense was the distribution of fifty grams or more of meth. Thus, the government was required to prove that Labrada intended to distribute at least fifty grams of meth. “Culpable intent can be inferred from the defendant‘s conduct and from the surrounding circumstanсes.” United States v. Bucher, 375 F.3d 929, 934 (9th Cir. 2004) (citations and alteration omitted).
There was extensive evidence in this case from which a rational jury could infer that Labrada had the requisite intent to distribute meth. Agent Garza engaged in extensive negotiations for the sale of meth with both Labrada and Duarte. Labrada used expressions common in the drug trade and the defendants drove from Phoenix to Yakima to consummate the transaction. At the meeting in Washington, Labrada attempted to negotiate the exchange, even offering to remain with Agent Garza for ransom until the deal was completed. When negotiations stalled, Labrada persisted in attеmpting to make the sale. Finally, Labrada admitted to Agent Rodriguez that he was in Washington for a drug deal.
Viewing this evidence in the light most favorable to the government, and drawing all reasonable inferences against Labrada, as we must, United States v. Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004), the evidence was sufficient for a rational jury to find, beyond a reasonable doubt, that Labrada intended to distribute fifty grams or more of meth.
3. Ineffective assistance of counsel
“Effectiveness of counsel is a mixed question of law and fact, reviewed de novo.” United States v. Jeronimo, 398 F.3d 1149, 1155 n. 3 (9th Cir. 2005) (citation omitted). “[A]s a general rule, we do not review challenges to the effectiveness of defense counsel on direct apрeal.” Id. at 1155 (citation omitted). However, we have developed “two extraordinary exceptions to this general rule: (1) where the record on appeal is sufficiently developed to permit determination of the issue, or (2) where the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel.” Id. at 1156 (citation omitted). The record in this case is sufficiently developed for us to determine that Labrada did not receive ineffective assistance of counsel.
Labrada‘s ineffective assistance claim rests on his trial cоunsel‘s failure to submit written objections to the Pre-sen-
4. Quantity of meth for sentencing
Labrada challenges the district court‘s use of five pounds as the quantity of meth involved in the offense for purposes of establishing his base offense level. He argues that this finding by the court violated his Sixth Amendment right to have a jury determine the quantity of drugs beyond a reasonable doubt. We “review de novo whether the district court violated the constitutional rule articulated in Apprendi.” United States v. Smith, 390 F.3d 661, 663 (9th Cir. 2004) (citation omitted).
To comply with the requirements of the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
Although the jury found the defendants guilty of conspiring to distribute only fifty grams or more of methamphetamine, Labrada admitted under oath that the amount of meth involved in the proposed sale was five pounds. Therefore, the use of five pounds to determine his base offense level violates neither Apprendi nor Blakely. See id. at 756 (“[W]e reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.“) (emphasis added).
Despite the lack of a Sixth Amendment violation, we vacate Labrada‘s sentence and remand his case to the district court for re-sentencing. At Labrada‘s sentencing hearing, the district court expressly advised the parties that the sentence was beyond his control. He stated, “[T]he kind of penalties that [the] Congress of the United States has imposed ... are very, very severe and I have no control over those. You‘re faсing more than 12 years in prison which is an ex-
B. Duarte-Cruz
1. Motion to suppress
Like Labrada, Duarte challenges the voluntariness of his Miranda waiver. He maintains that his silence at the scene of the arrest, coupled with Agent Rodriguez‘s failure to obtain an express statement of waiver, demonstrates that he did not voluntarily waive his rights. However, an express waiver is not required for a valid Miranda waiver. See, e.g., United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir. 2005) (“Waivers of Miranda rights need not be explicit; a suspeсt may impliedly waive the rights by answering an officer‘s questions after receiving Miranda warnings.“) (citation omitted). Duarte‘s acknowledgment that he understood his rights, and the absence of “police overreaching,” persuade us that Duarte knowingly and intelligently waived his Miranda rights and that the waiver was voluntary.
2. The “safety valve” provision of 18 U.S.C. § 3553(f)
Duarte challenges the denial of his request for application of the “safety valve” provision of
“The constitutionality of a statute is a legal question of law that we review de novo.” Younger, 398 F.3d at 1192 (citation omitted). “[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added).
The statutory mandatory minimum sentences under
C. Baranda-Gallardo
The only issue raised by Baranda is whether the district court violated his Sixth Amendment rights by using five pounds of meth in determining his base offense level. Unlike Labrada or Duarte,
D. Government‘s cross-appeal
As noted above, because Baranda had a prior felony drug conviction, hе faced a mandatory minimum sentence of twenty years. See
Although a defendant may collaterally attack a prior conviction used to enhance his sentence,6 no collateral challenge may be made if the prior conviction is more than five years old.
Baranda concedes, as he must, that he could not collaterally attack his prior conviction as the district court allowed. See United States v. Burrows, 36 F.3d 875, 885 (9th Cir. 1994) (holding that a defendant cannot collaterally challenge a prior conviction used to calculate criminal history points); see also Clawson v. United States, 52 F.3d 806, 807 (9th Cir. 1995) (concluding that a defendant has “no constitutional right to collaterally attack the validity of a state conviction in a federal sentencing hearing on any basis other than denial of the right to counsel.“) (citation omitted).
Although acknowledging the district court‘s error, Baranda argues that any sentencing error was harmless because there was insufficient evidence to prove he was involved in the conspiracy. This issue should have been raised in Baranda‘s opening brief and is therefore waived. United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005) (“Generally, an issue is waived when the appellant does not specifically and distinctly argue the issue in his or her opening brief.“) (citation omitted). In any event, Baranda‘s admis-
Baranda‘s next claim is that the government failed to provide sufficient proof of his prior conviction. Because Baranda did not raise this issue in his objections to the PSR or during his sentencing hearing, review is for plain error. See United States v. Scrivner, 114 F.3d 964, 966 (9th Cir. 1997) (applying plain error where defendants did not object to the PSR or during their sentencing hearing.).
Before a sentence may be enhanced under
The government filed the required information in this case, identifying the 1997 felony drug conviction used to enhance Baranda‘s sentence. Baranda obviously had no trouble recognizing the conviction because it was the only one alleged, and he challenged it on the basis that his plea colloquy was constitutionally deficient. Therefore, he “could not have been confused about the prior conviction[,]” and section 851(a) was satisfied. Id. at 944.
Baranda also raises a constitutional challenge to
Finally, Baranda maintains that imposition of the twenty-year mandatory minimum sentence violates the Eighth Amendment because such a sentence would not reflect an individualized assessment of his culpability. “We review de novo the constitutionality of a sentence.” United States v. Barajas-Avalos, 377 F.3d 1040, 1060 (9th Cir. 2004) (citation omitted).
“[F]ederal courts should be reluctant to review legislatively mandated terms of imprisonment because the fixing of prison terms for specific crimes is properly within the province of legislatures, not courts.” Id. (сitations, alteration, and internal quotation marks omitted). For this reason, “[m]andatory minimum sentencing schemes have been consistently upheld against constitutional challenge,” United States v. Wilkins, 911 F.2d 337, 339 (9th Cir. 1990) (citing cases), and “outside the context of capital punishment, successful
In this case, the imposition of the twenty-year mandatory minimum sentence would not be cruel and unusual for a defendant who, like Baranda, has been convicted of a serious drug crime and has a prior felony drug conviction. See id. at 1060-61 (upholding a 360-month sentence for a defendant convicted of attempting to manufacture and manufacturing methamphetamine and who had only a prior misdemeanor conviction).
We conclude that the district court erred in allowing Baranda to collaterally attack his prior conviction, and we therefore vacate his sentence and remand to the district court for re-sentencing consistent with this opinion.
III
CONCLUSION
The district court correctly denied Labrada and Duarte‘s motion to suppress because both defendants knowingly and intelligently waived thеir Miranda rights and the waivers were voluntary. There was sufficient evidence for a rational jury to find, beyond a reasonable doubt, that Labrada intended to distribute fifty grams or more of meth. Labrada did not receive ineffective assistance of counsel, as the court accepted and considered counsel‘s oral objections. Because of the district court‘s clear indication that it felt constrained by the Guidelines, and because the district court impermissibly permitted Baranda to collaterally attack his 1997 conviction, we vacate the sentences imposed so that the defendants can be resentenced under the now-advisory Guidelines.