United States v. 2020-01-17 | 15-10586 | USA V. IVAN SOTO-BARRAZA | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IVAN SOTO-BARRAZA,
Defendant-Appellant.
No. 15-10586
D.C. No.
4:11-cr-00150-DCB-BPV-3
MEMORANDUM
*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS LIONEL SANCHEZ-MEZA,
AKA Leonel Meza-Portillo, AKA Lionel
Meza-Portillo, AKA Leonel Portillo-Meza,
AKA Lionel Portillo-Meza, AKA Jesus
Leonel Sanchez-Meza,
Defendant-Appellant.
No. 15-10589
D.C. No.
4:11-cr-00150-DCB-BPV-5
Appeal from the United States District Court
for the District of Arizona
FILED
JAN 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

David C. Bury, District Judge, Presiding
Argued and Submitted October 17, 2017
Submission Vacated January 24, 2018
Resubmitted January 17, 2020
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and MCSHANE,
**
District Judge.

Ivan Soto-Barraza and Jesus Lionel Sanchez-Meza appeal their convictions
for first-degree murder, conspiracy to commit robbery, attempted robbery, assault
on a U.S. Border Patrol Agent, and carrying and discharging a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(3). The
district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291. For the reasons below and in a concurrently-filed opinion, ___
F. 3d. ___ (9th Cir. 2018), we vacate defendants’ convictions for carrying and
discharging a firearm under Count 9 and affirm in all other respects.
1. We accept the government’s concession that conspiracy to commit Hobbs
Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3) in light of the
Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319, 2336 (2019)
(holding that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague). Therefore, we
* *
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
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vacate defendants’ convictions for carrying and discharging a firearm in
furtherance of a crime of violence.
2. The district court did not abuse its discretion in denying defendants’ first
request for a ballistics expert and their request for a computer expert. See United
States v. Pete, 819 F.3d 1121, 1130 (9th Cir. 2016). Neither expert was necessary
to the defense, nor did the defendants show that the lack of the requested experts
was prejudicial. See id. Soto-Barraza was able to present evidence in support of
his motion for change of venue without expert testimony, and the district court
sufficiently managed publicity concerns through the use of voir dire. Moreover,
the district court approved the defendants’ second request for a ballistics expert,
whom the defendants agreed was a suitable alternative.
3. The district court did not abuse its discretion by denying defendants’
request to use a pre-screening questionnaire of potential jurors. See United States
v. Howell, 231 F.3d 615, 627 (9th Cir. 2000). The district court reasonably
concluded that a questionnaire might stimulate inquiry into the case, rather than
identify unbiased jurors. Likewise, the district court did not abuse its discretion by
advising the jury that the death penalty was not at issue, because “the realistic
chance that it had any undue effect on the jury verdict is very remote.” See United
States v. Steel, 759 F.2d 706, 711 (9th Cir. 1985).
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4. Nor did the court abuse its discretion by instructing the jury that narcotics
trafficking satisfied the Hobbs Act’s interstate commerce requirement. See Taylor
v. United States, 136 S. Ct. 2074, 2080 (2016). Because defendants conceded their
guilt to the conspiracy charge, they cannot now challenge the lack of an interstate
commerce requirement on Count 3. See Soto-Barraza v. United States, ___ F.3d
___, ____ (9th Cir. 2020); United States v. Brooks, 508 F.3d 1205, 1208 (9th Cir.
2007).
5. The district court did not abuse its discretion in denying defendants’
motion to sever. See United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008).
In any event, defendants waived their appeal of the denial because they did not
renew the motions at the close of evidence. See id. Nor was Bruton v. United
States, 391 U.S. 123 (1968), violated because (1) the government introduced each
defendant’s confessions only through testimony that did not facially incriminate
the co-defendant, and (2) each confession included a limiting instruction, see
Richardson v. Marsh, 481 U.S. 200, 211 (1987).
4

6. We reject defendants’ arguments about prosecutorial misconduct during
closing argument.
1
The prosecutor did not improperly disparage the defense when
he referred to the defense theory as “absurd,” and “trickery.” See United States v.
Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013). Similarly, the government did not
improperly vouch for a witness by stating that the government produced only
“factual” evidence and witnesses who were “sworn to tell the truth,” because the
government did not put its own credibility or prestige behind the witnesses. See id.
7. We also affirm the district court’s denial of Sanchez-Meza’s motion to
suppress. The district court did not clearly err in finding the interviewing FBI
agent to be more credible than Sanchez-Meza with respect to his allegations of
abuse by Mexican authorities. See United States v. Labrada-Bustamante, 428 F.3d
1252, 1259 (9th Cir. 2005). The district court correctly noted discrepancies in
Sanchez-Meza’s testimony, and Sanchez-Meza testified that the FBI agents treated
him well. Therefore, the district court did not err in concluding that the “totality of
the circumstances” showed voluntariness. See United States v. Crawford, 372 F.3d
1048, 1060 (9th Cir. 2004) (en banc).
1
We review this claim for plain error because there were no objections to
the relevant statements during closing argument. United States v. Weatherspoon,
410 F.3d 1142, 1150–51 (9th Cir. 2005).
5

8. Finally, we affirm defendants’ remaining sentences. Any error in
imposing the official-victim enhancement was harmless because each defendant
would have a total offense level of 43 under the Guidelines regardless of the
enhancement. See U.S. Sentencing Guidelines Manual, § 5A, App. n.2. (U.S.
Sentencing Comm’n 2016) (“An offense level of more than 43 is to be treated as
an offense level of 43.”). Similarly, we reject defendants’ claim that the district
court erred by failing to “avoid unwarranted sentence disparities,” 18 U.S.C. §
3553(a)(6), between their life sentences and the lesser sentences imposed on their
co-defendants. The co-defendants cooperated with the government, and a
sentencing disparity based on cooperation is reasonable. See United States v.
Laurienti, 731 F.3d 967, 976 (9th Cir. 2013).
AFFIRMED IN PART AND VACATED IN PART
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