United States of America v. Juan Salinas Bautista, also known as DJ, also known as Jose Morales Victoria

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Donald E. Walter, Senior United States District Judge**
for the Western District of Louisiana, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN SALINAS BAUTISTA, also known
as DJ, also known as Jose Morales
Victoria,
Defendant - Appellant.
No. 09-30335
D.C. No. 2:08-cr-00082-RSL-4
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted July 12, 2010
Seattle, Washington
Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.**
Juan Salinas Bautista appeals his conviction and sentence for (1) conspiracy
to distribute cocaine and cocaine base in the form of crack cocaine under 21 U.S.C.
FILED
JUL 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§§ 841(a)(1), 841(b)(1)(A), and 846, and (2) possession with intent to distribute
cocaine and cocaine base in the form of crack cocaine under 21 U.S.C. § 841(a)(1)
and 841(b)(1)(B). We affirm.
1. We find that the government satisfied its statutory burdens under 18 U.S.C.
§ 2518. The government’s applications sufficiently “attest[] that adequate
investigative tactics were exhausted before the wiretap order was sought or that
such methods reasonably appeared unlikely to succeed or too dangerous.” United
States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008) (citations omitted). Further, the
government acted reasonably in its “good faith efforts to use traditional
investigative tactics or its decision to forego such tactics based on the unlikelihood
of their success or the probable risk of danger involved with their use.” United
States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005). Even if the
government made misstatements and recklessly omitted evidence in its
applications, we do not find that such statements were material to the authorizing
court’s approval of the wiretaps. See United States v. Carneiro, 861 F.2d 1171,
1176 (9th Cir. 1988) (“If an application is inaccurate, the reviewing court must
determine the true facts and rely on the credible evidence produced at the
suppression hearing to determine whether a reasonable district court judge could

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Franks v. Delaware, 438 U.S. 154 (1978).1
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have denied the application because necessity for the wiretap had not been shown.”
(citation and quotation marks omitted)).
2. For similar reasons, Bautista is not entitled to develop a record supporting
his argument for suppression, through a Franks hearing, because he has failed to1
make “a substantial preliminary showing that the affidavit[s] contained
intentionally or recklessly false statements, and that the affidavit purged of its
falsities would not be sufficient to support a finding of probable cause.” United
States v. Meling, 47 F.3d 1546, 1553 (9th Cir. 1995) (internal quotation marks
omitted).
3. Bautista bases his ineffective assistance of counsel claim upon the fact that,
in arguing for a Franks hearing, his counsel did not direct the district court to
United States v. Rivera, 527 F.3d 891 (9th Cir. 2008). However, we find that
Rivera offers no support for Bautista’s position; thus, the failure to direct the
district court to that opinion was not ineffective assistance. Furthermore, having
found the wiretaps proper, Bautista cannot demonstrate prejudice. See Strickland
v. Washington, 466 U.S. 668, 691–92 (1984).
4. At sentencing, the court considered the guideline range as well as § 3553(a)
factors. The court was presented with mitigating and aggravating facts from both

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Bautista and the government. On the evidence set before it, the court did not abuse
its discretion by imposing a term of 136 months. See United States v. Carty, 520
F.3d 984, 993–94 (9th Cir. 2008) (en banc).
AFFIRMED.

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