                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                                                                              JAN 15 2016
                            FOR THE NINTH CIRCUIT
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


UNITED STATES OF AMERICA,                        No. 13-50617

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00445-DSF-59

 v.
                                                 MEMORANDUM*
JESUS MARTINEZ DELGADO, AKA
Chuy, AKA Jesus Martinez,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted January 5, 2016
                               Pasadena, California

Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges.

      Jesus Martinez Delgado (Delgado) appeals from his convictions and

sentence for conspiracy to distribute cocaine base and methamphetamine,

possession with intent to distribute cocaine base, and simple possession of

methamphetamine. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
As the facts and procedural history are familiar to the parties, we do not recite them

here except as necessary to explain our disposition.

1.     The district court did not err when it denied Delgado’s motion to suppress

based on an asserted Miranda violation without holding an evidentiary hearing.

“Whether an evidentiary hearing is appropriate rests in the reasoned discretion of

the district court.” United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (per

curiam). “An evidentiary hearing on a motion to suppress ordinarily is required if

the moving papers are sufficiently definite, specific, detailed, and nonconjectural to

enable the court to conclude that contested issues of fact . . . are in issue.” Id.; see

also United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000).

       Delgado’s motion was not sufficiently definite, specific, or detailed to create

a contested issue of fact. He generally asserted that when an officer read him his

rights in Spanish, he did not “completely understand” his rights because the

“agent’s Spanish was not very good.” In response, the government proffered an

affidavit of the agent who explained that his native language was Spanish, and he

read Delgado his Miranda rights from a pre-printed form. Delgado “did not

indicate . . . any confusion or uncertainty,” and told the officer “in Spanish that he

understood his rights and agreed to speak.” The record does not reflect any

communication difficulties through the rest of the interview.


                                            2
      Delgado did not reply to the government’s opposition or rebut any of the

officer’s statements. The district court expressly asked Delgado’s counsel whether

he would like to be heard on the motion to suppress, and his counsel declined,

choosing instead to submit on the papers. In these circumstances, it cannot be said

that the district court abused its discretion in concluding that Delgado’s self-

serving and generalized statements failed to create a contested issue of fact

requiring an evidentiary hearing. See Walczak, 783 F.2d at 857.

2.    The district court did not abuse its discretion by denying Delgado’s motions

to substitute counsel. The district court here gave Delgado a “full and fair

opportunity to explain why he felt substitution was necessary.” United States v.

Prime, 431 F.3d 1147, 1155 (9th Cir. 2005). The district court listened to his

counsel’s explanations in response, explained to Delgado why his counsel’s actions

had been reasonable, and concluded that Delgado and his attorney had not

developed an irreconcilable conflict or serious breakdown in communication that

would “result in an inadequate defense.” United States v. Musa, 220 F.3d 1096,

1102 (9th Cir. 2000).




                                           3
3.    The district court that issued the wiretap for Delgado’s co-conspirator’s

phone1 did not abuse its discretion in concluding that the government had made “a

full and complete statement as to whether or not other investigative procedures

have been tried and failed or why they reasonably appear to be unlikely to succeed

if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). “[W]e have adopted a

‘common sense approach’ in which the reviewing court uses a standard of

reasonableness to evaluate the government’s good faith effort to use alternative

investigative means . . . .” United States v. Blackmon, 273 F.3d 1204, 1207 (9th

Cir. 2001). The government’s affidavit “devote[d] 76 pages to why other

investigatory procedures would not be effective,” and explained “in case-specific

detail why the use of . . . alternative investigatory procedures would be of

extremely limited utility, unlikely to succeed, and/or pose undue risk to human

safety.” This level of detail satisfies the statutory requirements under our

precedent, and the district court did not abuse its discretion in finding the wiretap

necessary to identify the role of all participants in the conspiracy under

      1
        At the district court, the government argued that Delgado had not
adequately alleged that he “was a party to” the intercepted communications, such
that he would have standing to challenge the wiretap. The district court found that
Delgado did have standing. We do not reach this issue, because the government
has not renewed that argument on appeal, and because it affirmatively acquiesced
to Delgado’s standing at oral argument. See United States v. Spilotro, 800 F.2d
959, 963 (9th Cir. 1986).

                                           4
investigation. See United States v. Garcia-Villalba, 585 F.3d 1223, 1228–31 (9th

Cir. 2009).

4.    The district court did not err in treating Delgado’s 2005 state court

conviction as a prior drug conviction to enhance his sentence. State convictions

may be used to enhance a federal sentence even where the federal and state charges

“derive in part from the same activity.” United States v. Baker, 10 F.3d 1374, 1420

(9th Cir. 1993) (amended opinion), overruled on other grounds by United States v.

Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000).

5.    Delgado’s rights under the Double Jeopardy Clause were not violated

because the underlying conduct in one of his state court convictions was also used

as an overt act in furtherance of the federal conspiracy, and also used to enhance

his sentence. A conviction of a substantive offense and a separate conviction for

conspiracy involving that substantive offense do not pose a double jeopardy

problem. United States v. Felix, 503 U.S. 378, 380–81 (1992). Likewise, it does

not violate double jeopardy when a related substantive offense is used to enhance a

sentence for a separate crime. Witte v. United States, 515 U.S. 389, 399–401

(1995).

6.    The district court did not violate Delgado’s Sixth Amendment right to a jury

trial by making findings regarding his previous convictions for sentencing, rather


                                          5
than submitting those issues to the jury. Sentencing factors such as recidivism are

not elements of a crime that are constitutionally subject to a trial by jury.

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998).

7.    Delgado’s sentence does not violate the Cruel and Unusual Punishment

Clause of the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957,

994–96 (1991).

      AFFIRMED.




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