                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 28 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10255

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00753-CKJ-JJM-
                                                 5
  v.

RUPERTO GUILLEN-CERVANTES,                       MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10279

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00753-CKJ-JJM-
                                                 6
  v.

BETTY CASTILLO,

              Defendant - Appellant.


                   Appeals from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

             Argued and Submitted January 13, 2014, as to 12-10255;
                  Submitted January 13, 2014, as to 12-10279**

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                San Francisco, California

Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.***

      Co-defendants Ruperto Guillen-Cervantes and Betty Castillo were convicted

of violating 8 U.S.C. § 1324 by virtue of their participation in a conspiracy to

transport and harbor unlawful aliens. They raise a number of challenges to their

respective convictions, sentences, and forfeiture judgments. We ordered the two

cases consolidated, and we now affirm.1

      1.        The district court did not err in denying Guillen-Cervantes a hearing

under Franks v. Delaware, 438 U.S. 154 (1978). To merit such a hearing, a

defendant must present “allegations of deliberate falsehood or of reckless disregard

for the truth,” and “point out specifically the portion of the warrant affidavit that is

claimed to be false.” Id. at 171. Before the district court, Guillen-Cervantes did

neither. His reliance on alleged overstatements in the government’s wiretap




          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      1
       We address Castillo’s Fifth Amendment due process arguments in an
opinion filed this date.

                                            2
affidavit and his promise that a misrepresentation would be revealed during a

Franks hearing, if granted, do not suffice.

      2.     The district court did not abuse its discretion in finding that the

government demonstrated sufficient necessity to justify the wiretap. The affidavit

set forth the government’s good faith efforts to utilize traditional investigative

techniques before seeking a wiretap and offered sufficiently particularized

arguments to support a finding of necessity. Specifically, the government provided

a number of reasons why, in the context of its investigation, physical and video

surveillance, sources of information and confidential informants, arrestees,

undercover agents, pen and trap data collection, and trash runs had been and would

continue to be unsuccessful in achieving the goals of the investigation. We employ

a “common sense approach to evaluate the reasonableness of the government’s

good faith efforts to use traditional investigative tactics or its decision to forgo

such tactics.” United States v. Rivera, 527 F.3d 891, 902 (9th Cir. 2008) (quoting

United States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005), amended on

denial of reh’g, 437 F.3d 854 (9th Cir. 2006)) (internal quotation mark omitted).

In doing so, we find that the government’s wiretap affidavit satisfies 18 U.S.C. §

2518(3)(c), especially in light of the greater leeway the government enjoys when




                                            3
pursuing a criminal conspiracy. See United States v. Garcia-Villalba, 585 F.3d

1223, 1230 (9th Cir. 2009).

      3.     The district court correctly applied a preponderance of the evidence

standard in determining the number of unlawful aliens attributable to Guillen-

Cervantes. See United States v. Hernandez-Franco, 189 F.3d 1151, 1159 (9th Cir.

1999). Moreover, the district court did not clearly err in finding that Guillen-

Cervantes was responsible for the smuggling, transport, or harboring of a hundred

or more unlawful aliens for purposes of the sentencing enhancement pursuant to

U.S. Sentencing Guidelines § 2L1.1(b)(2)(C). At the forfeiture hearing, a

government agent testified that he had reviewed intercepted phone conversations

and stationary pole camera video footage from May 2009 through mid-April 2010,

and based on those efforts, he determined that Guillen-Cervantes’s business had

facilitated the transport of 114 unlawful aliens during that period. Though it is not

entirely clear whether this figure was the product of some extrapolation, we

nonetheless find no clear error because of the government agent’s firsthand review

and analysis of the phone conversations and video footage discussed above. See

Easley v. Cromartie, 532 U.S. 234, 242 (2001) (noting that reversal on clear error

requires a “definite and firm conviction that a mistake has been committed”

(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)) (internal


                                          4
quotation mark omitted)). Even if the district court should have employed a “clear

and convincing standard,” our conclusion would be unchanged.

      4.     Castillo’s forfeiture order does not contravene the Eighth Amendment

because the Excessive Fines Clause is inapplicable to the forfeiture of criminal

proceeds. “[C]riminal proceeds represent the paradigmatic example of ‘guilty

property,’ the forfeiture of which has been traditionally regarded as non-punitive . .

. .” United States v. 22 Santa Barbara Drive, 264 F.3d 860, 874 (9th Cir. 2001).

As a non-punitive forfeiture, Castillo’s order thus falls outside the ambit of the

Eighth Amendment. See Austin v. United States, 509 U.S. 602, 609–10 (1993).

      5.     The district court was not obliged to explain the disparity between

Castillo’s sentence and that of co-defendant Gloria Vera. Castillo’s reliance on

United States v. Capriola, 537 F.2d 319 (9th Cir. 1976) (per curiam), is unavailing

given that Capriola has been limited to its facts. See United States v. Hall, 778

F.2d 1427, 1428 (9th Cir. 1985). Moreover, Castillo does not argue that she

incurred a more severe sentence as a result of her exercise of a constitutional right.

See id. at 1428–29.

      6.     The district court’s denial of a two-level downward sentencing

adjustment for Castillo based on acceptance of responsibility did not constitute

clear error. First, Castillo did not proceed to trial in order to assert and preserve an


                                         Page 5
issue unrelated to factual guilt. See U.S. Sentencing Guidelines Manual § 3E1.1

cmt. n.2. Rather, she contested her factual guilt in order to avoid a particular

consequence of conviction—namely, deportation. Second, the two-level

downward sentencing adjustment was not required under United States v.

McKinney, 15 F.3d 849 (9th Cir. 1994). Unlike Castillo, the defendant there

demonstrated significant contrition in his pretrial statements and conduct. See id.

at 852–53; see also U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.2 (“[A]

determination that a defendant has accepted responsibility will be based primarily

upon pre-trial statements and conduct.”).

      AFFIRMED.




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