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United States v. Herrera-Rivera

United States Court of Appeals, Ninth Circuit

August 12, 2016

United States of America, Plaintiff-Appellee,
v.
Carlos Herrera-Rivera, Defendant-Appellant.

          Submitted April 6, 2016 [*] Pasadena, California

         Appeal from the United States District Court for the Southern District of California, D.C. No. 3:14-cr-00653-BEN Roger T. Benitez, District Judge, Presiding

          Thomas P. Matthews, Law Office of Thomas P. Matthews, San Diego, California, for Defendant-Appellant.

          D. Benjamin Holley, Assistant United States Attorney; Peter Ko, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Laura E. Duffy, United States Attorney; Office of the United States Attorney, San Diego, California; for Plaintiff-Appellee.

          Before: A. Wallace Tashima, Barry G. Silverman and Susan P. Graber, Circuit Judges.

         SUMMARY[**]

         Criminal Law

         The panel affirmed a conviction for possession of methamphetamine with intent to distribute, vacated the sentence, and remanded for further proceedings.

         The panel held that the district court did not abuse its discretion in denying an evidentiary hearing on the defendant's motion to suppress, where the motion was not supported by a declaration from someone with knowledge who was available for cross-examination at a hearing on the motion, as required by the Southern District of California's Local Criminal Rule 47.1.

         The panel held that the defendant's contention that the district court erred in applying Batson's framework on his challenge to the government's striking the only African-American juror is not supported by the record.

         The panel held that the district court did not clearly err in denying a minor-role reduction at sentencing.

         The panel held that the district court's failure, in applying an obstruction of justice enhancement, to explicitly find that the defendant's testimony was willful and material is plain error affecting the defendant's substantial rights.

         Regarding the defendant's contention that the government failed to disclose its suspicion that the defendant was a longtime pedestrian narcotics smuggler, resulting in prejudice at trial and at sentencing, the panel held that there was no basis for reversal where counsel chose not to raise a valid objection on this purely factual question.

         Judge Graber concurred in all respects except that she would affirm the enhancement for obstruction of justice because the defendant has not satisfied the requirements of plain error review.

          OPINION

          SILVERMAN, Circuit Judge:

         Carlos Herrera-Rivera appeals his jury trial conviction for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the 120-month sentence imposed by the district court. Herrera-Rivera contends that the district court erred by denying his request for an evidentiary hearing on his motion to suppress, denying his Batson challenge without conducting an appropriate Batson analysis, and denying a minor-role reduction. He further contends that the government withheld evidence, resulting in prejudice both at trial and at sentencing. We reject each of these contentions. However, we agree with Herrera-Rivera that the district court plainly erred by applying an obstruction of justice enhancement to his sentence without making the express findings required by United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014). Accordingly, we affirm the conviction, vacate the sentence, and remand for further proceedings consistent with this opinion.

         I. Background

         A. Facts

         On February 13, 2014, an Intercalifornias bus was referred to secondary inspection at the Highway 86 Indio Border Patrol Station in Westmoreland, California. United States Border Patrol agents boarded the bus, performed an immigration inspection, and checked the bags in the overhead compartment to make sure that each belonged to someone on the bus. A few rows from the back of the bus, agents found an unclaimed backpack. Inside, they found six bundles wrapped in black electrical tape. A subsequent laboratory analysis showed that the bundles contained more than a kilogram of methamphetamine.

         Herrera-Rivera was sitting a few rows behind the bag and had crossed the United States-Mexico border earlier that morning. Agents searched Herrera-Rivera's person, with his consent, and discovered black marks on his stomach that they believed were residue from electrical tape. Agents also performed a search, with consent, of two cell phones they found in Herrera-Rivera's possession, that contained text messages appearing to arrange a rendezvous and payment for Herrera-Rivera's return trip to Mexico.

         The Border Patrol agents arrested Herrera-Rivera and placed him in a holding cell. A few hours later, Drug Enforcement Administration agents arrived at the Border Patrol Station, read Herrera-Rivera his Miranda rights, and interviewed him. Herrera-Rivera told the agents that when he crossed the border that morning, he ran into a friend who gave him a cell phone and sixty dollars and told him to get on a bus to Calexico. When Herrera-Rivera arrived in Calexico, his friend told him to get on the Intercalifornias bus. Herrera-Rivera also told the agents that he believed there were narcotics on the bus because he knew his friend was involved in trafficking.

         The government filed a one count information charging Herrera-Rivera with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

         B. Motion to Suppress

         Herrera-Rivera filed a motion to suppress his statements, arguing that the Border Patrol and DEA agents conducted a deliberate two-step interrogation, in violation of Missouri v. Seibert, 542 U.S. 600 (2004), and United States v. Williams, 435 F.3d 1148 (9th Cir. 2006). The government's response was supported by two declarations, the first signed by a Border Patrol agent and the second by a DEA agent, attesting to its version of the facts surrounding Herrera-Rivera's arrest. Herrera-Rivera, on the other hand, filed a declaration signed by his lawyer, stating that counsel believed the facts alleged in the motion were true, based on his conversations with Herrera-Rivera.

         The district court denied Herrera-Rivera's motion to suppress without holding an evidentiary hearing. The court ruled that it was not required to hold a hearing because Herrera-Rivera had failed to support his motion with a declaration by someone with knowledge who was available for cross-examination, as required by the Southern District of California's Local Criminal Rules. The court then found, based on the agents' declarations, that Herrera-Rivera was not in custody when ...


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