                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 30 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-50276

              Plaintiff-Appellee,                D.C. No. 3:14-cr-01288-DMS-1

 v.
                                                 MEMORANDUM*
RANDY ALTON GRAVES,
AKA Sweets,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                       Argued and Submitted April 10, 2019
                              Pasadena, California

Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      Randy Alton Graves challenges his convictions for drug conspiracy and

possession and resulting life sentence after his case was severed from those of

other defendants charged with conspiring to participate in a racketeer influenced

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
and corrupt organization as alleged gang members. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742. We address in a separate, published opinion

his argument that the district court erred in concluding that his conviction under

California Penal Code § 4573.6 qualified as a felony drug offense under 21 U.S.C.

§ 841. We affirm on the remainder of Graves’ claims here.

1.    The district court did not err in denying Graves’ motion to suppress wiretap

evidence.1 Graves never requested that the court recuse itself from reviewing the

wiretap warrant, and he points to no authority establishing that the court’s failure

to do so constituted plain error. See United States v. Olano, 507 U.S. 725, 731

(1993). The main case that supports Graves’ position, United States v. Rodriguez,

851 F.3d 931, 937 (9th Cir. 2017), was published two years after the district

court’s decision and so any error was not “plain.” United States v. Gonzalez-

Aparicio, 663 F.3d 419, 428 (9th Cir. 2011). Reviewing the application de novo,

we conclude that the wiretap application met the requirements under 18 U.S.C.


      1
        The government argues Graves never had standing to challenge the wiretap
order because his conversations were not intercepted pursuant to that order and he
did not own any of the intercepted phones. By statute, any “aggrieved person” —
defined as a party to any intercepted communication or any “person against whom
the interception was directed” — may move to suppress the contents of a wiretap.
18 U.S.C. §§ 2510(11), 2518(10)(a). Graves’ conversations were expected to be
intercepted, and the government supported its wiretap request with examples of his
criminal activity. We therefore consider his claim because Graves has standing as
an “aggrieved person” under the statute.
                                           2
§ 2518(1)(c). The district court also did not abuse its discretion in concluding the

wiretap was necessary because the application provided a full statement why other

investigative procedures had failed or appeared unlikely to succeed if tried. See id.;

United States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008).

2.    Nor did the district court abuse its discretion in denying a motion for recusal.

See United States v. Johnson, 610 F.3d 1138, 1147-48 (9th Cir. 2010). Graves has

identified the judge’s general familiarity with him and his case based on separate

proceedings, but has not presented evidence of such “a deep-seated favoritism or

antagonism that would make fair judgment impossible.” Liteky v. United States,

510 U.S. 540, 555 (1994).

3.    The district court did not abuse its discretion in denying Graves’ request for

a buyer-seller jury instruction. See United States v. Moe, 781 F.3d 1120, 1125-26

(9th Cir. 2015). While a criminal defendant has a constitutional right to have the

jury instructed according to his theory of the case, provided that the instruction is

supported by law and has some foundation in the evidence, the district court may

deny a requested instruction where the evidence is insufficient to sustain that

theory of defense. United States v. Ocampo-Estrada, 873 F.3d 661, 665 (9th Cir.

2017). Graves has not established an abuse of discretion because the evidence




                                           3
supported a conspiracy theory and was insufficient to sustain a buyer-seller

defense.

4.    Finally, the sentencing enhancement provision in 21 U.S.C. § 841 is not void

for vagueness as applied to Graves because his prior convictions are clearly felony

drug offenses. Blue Br. 56. Graves acknowledges this, but he argues that the

provision is facially void for vagueness. Previously, in United States v. Van

Winrow, 951 F.2d 1069, 1072 (9th Cir. 1991) and United States v. Mincoff, 574

F.3d 1186, 1201 (9th Cir. 2009), we considered the constitutionality of the “felony

drug offense” definition “as applied” to the defendant, not facially. The Supreme

Court’s decisions, Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), are not “clearly irreconcilable” with our

precedents, so we must follow Van Winrow and Mincoff. Miller v. Gammie, 335

F.3d 889, 893 (9th Cir. 2003) (en banc).

      AFFIRMED in part.




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