                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         JUN 13 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   15-30238

                Plaintiff-Appellee,              D.C. No. 1:14-cr-00038-SPW-9

 v.
                                                 MEMORANDUM*
MARIO ALBERT VILLEGAS,

                Defendant-Appellant.

                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                              Submitted June 9, 2017**
                                Seattle, Washington

Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.

      Mario Villegas appeals his jury conviction and sentence for conspiracy to

distribute methamphetamine and to possess methamphetamine with intent to

distribute, in violation of 21 U.S.C. § 846, and possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). We have


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court did not err when it denied Villegas’s motion to suppress

the wiretap and digital evidence. United States v. Reed, 575 F.3d 900, 908 (9th

Cir. 2009). The government had no duty to establish necessity as to each possible

interceptee, and Villegas does not dispute that the government sufficiently

established necessity for the wiretaps with regard to its investigation of the drug

trafficking conspiracy as a whole. Id. at 911–12.

      The jury instructions on venue correctly stated the law. United States v.

Gonzalez, 683 F.3d 1221, 1224–26 (9th Cir. 2012) (standard for venue on

conspiracy charge); United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010)

(explaining that jury instructions must correctly state the law); United States v.

Mendoza, 108 F.3d 1155, 1156 (9th Cir. 1997) (standard for venue on possession

charge); see also United States v. Valdez-Santos, 457 F.3d 1044, 1046 (9th Cir.

2006) (same). The jury instructions as a whole were not misleading. Hofus, 598

F.3d at 1174. The court properly instructed the jury that the government had to

prove the elements for the conspiracy and possession charges beyond a reasonable

doubt. It was not misleading for the court to also instruct the jury on what the

government had to prove by a preponderance of the evidence in order to establish

venue.

      Villegas’s sentence was substantively reasonable. United States v. Dibe, 776


                                          2
F.3d 665, 669 (9th Cir. 2015). Villegas does not dispute that 360 months was the

low end of the advisory guideline range. The district court properly reviewed the

relevant 18 U.S.C. § 3553(a) factors and explained why a downward variance was

inappropriate, given the seriousness of the offense and Villegas’s extensive

criminal history. See United States v. Carty, 520 F.3d 984, 991–93 (9th Cir. 2008)

(en banc). The district court also explained why Villegas’s sentence was not

disproportionate to the sentences of his co-conspirators, since the disparity was

attributable to Villegas’s elevated criminal history, and those of Villegas’s co-

conspirators who were not entitled to special considerations also received

guideline-range sentences.

      AFFIRMED.




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