                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             DEC 06 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-10430

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00611-DGC-2

  v.
                                                 MEMORANDUM*
CARLOS ALVAREZ-ESPINOZA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                     Argued and Submitted November 5, 2010
                              Pasadena, California

Before: SCHROEDER, TALLMAN and M. SMITH, Circuit Judges.

       Carlos Alvarez-Espinoza was convicted of multiple crimes arising out of the

hostage taking of undocumented immigrants. He appeals his conviction and

sentence to a total of 137 years in prison.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err in denying Alvarez-Espinoza’s motion to

dismiss the indictment due to the government’s failure to retain a witness who

provided part of the basis for the search warrant. To support a dismissal of the

indictment, Alvarez-Espinoza must show that the government acted in bad faith

and caused prejudice to his case, and as conceded at oral argument, he cannot make

any such showing. See United States v. Gastelum-Almeida, 298 F.3d 1167, 1174

(9th Cir. 2002).

      The district court imposed 18 U.S.C. § 924(c)(1)(A)(ii)’s mandatory

minimum seven-year sentence consecutive to the greater mandatory minimum

sentences required by the subsequent firearms convictions on other counts.

Alvarez-Espinoza contends this was error. The issue is the same as that recently

decided by the Supreme Court in Abbott v. United States, 131 S.Ct. 18 (2010). The

Court held that “a defendant is subject to a mandatory, consecutive sentence for a

§ 924(c) conviction, and is not spared from that sentence by virtue of receiving a

higher mandatory minimum on a different count of conviction.” Id. at *5. There

was no error.

      Alvarez-Espinoza also contends the district court erred when it stacked the

§ 924(c) sentences related to the brandishing of a firearm. There was no error

because under our circuit’s law, “when the government charges more than one


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§ 924(c) offense in a single indictment, each additional count is to be treated as a

‘second or subsequent conviction’ for purposes of 18 U.S.C. § 924(c)(1)(C)(i) and

therefore carries a mandatory minimum sentence of twenty-five years. Because

§ 924(c)(1)(D)(ii) requires that ‘no term of imprisonment imposed on a person

under this subsection shall run concurrently with any other term of imprisonment

imposed,’ each independent § 924(c) count in the indictment imposes a consecutive

sentence in addition to any other sentence imposed, either under § 924(c) or under

any other counts for which the defendant has been convicted.” United States v.

Beltran-Moreno, 556 F.3d 913, 915 (9th Cir. 2009) (emphasis in the original).

      We have also recently held “that a sentencing court may not depart below

statutory minimums based upon the § 3553(a) factors.” United States v. Wipf, 620

F.3d 1168, 1171 (9th Cir. 2010). Alvarez-Espinoza’s argument that the court

should have done so in this case is therefore foreclosed.

      Our case law also forecloses the argument that the sentence constitutes cruel

and unusual punishment. See United States v. Harris, 154 F.3d 1082, 1084 (9th

Cir. 1998) (“A sentence which is within the limits set by a valid statute may not be

overturned on appeal as cruel and unusual.”) (citations, brackets, and internal

quotation marks omitted).

      AFFIRMED.


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