                                                                           FILED
                                                                           APR 01 2015
                           NOT FOR PUBLICATION                         MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50269

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00050-GAF-31

  v.
                                                 MEMORANDUM*
MARIO MORAN, aka Lone, aka Lonely,
aka Lonely Boy, aka Johnny Moran, aka
Mario Rafael Moran,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                     Argued and Submitted December 11, 2014
                               Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and SMITH, District Judge.**




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

        **    The Honorable William E. Smith, Chief United States District Judge
for the District of Rhode Island, sitting by designation.
      Mario Moran (“Moran”) appeals his sentence of 144 months’ imprisonment

following a guilty plea to one count of racketeering conspiracy in violation of 18

U.S.C. § 1962(d). Moran challenges the district court’s determination that the

conduct underlying his racketeering conviction was a conspiracy to commit murder

and disputes the district court’s calculation of his Guidelines range based on this

determination. Moran further argues that his sentence was substantively

unreasonable. We affirm.

      1. The district court did not err in finding that Moran knew of a conspiracy

by 38th Street Gang members to murder certain individuals when he provided

these gang members with firearms. According to the factual basis in Moran’s plea

agreement, in January 2010, Moran provided firearms to a 38th Street Gang

member knowing these weapons could be used to shoot at others. Moran contends

that the district court could not have found, based solely on that factual basis, that

Moran knew of gang members’ plan to murder certain individuals. However, the

district court did not rely solely on Moran’s plea agreement. The court also relied

upon cooperating witness statements and summaries of intercepted phone calls

corroborating those statements.




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      Moran asserts that, beyond the plea agreement’s factual basis, evidence of

his knowledge of the murder conspiracy consisted of unreliable cooperator

statements and hearsay. The district court relied on testimony by cooperating

witness Isaac Alvarez from the trial of Moran’s co-defendants. Alvarez testified

that around January 2010, Moran attended a meeting with 38th Street Gang

members to discuss killing two individuals and, after providing Alvarez with two

firearms, joined him and others in the search for the targets. Alvarez was

subsequently caught by the police, and the firearms were confiscated.

      Having observed Alvarez testify, the district court found him credible,

despite some inconsistencies, because his statements implicating Moran

accompanied his own admissions of guilt and were corroborated by intercepted

phone conversations. This rationale is more than sufficient to support the district

court’s reliance on Alvarez’s testimony, especially in light of the “special

deference” we give the sentencing court’s credibility determinations. United States

v. Santos, 527 F.3d 1003, 1009 (9th Cir. 2008) (quoting United States v. Haswood,

350 F.3d 1024, 1028) (9th Cir. 2003)).

      Although Moran asserts that the district court based its findings on hearsay

evidence, the only hearsay upon which the court relied consisted of the summaries

of intercepted calls that Moran himself submitted at sentencing. Moran does not


                                           3
dispute this evidence’s reliability, but rather the district court’s conclusion from

it—that it showed Moran’s awareness of the murder conspiracy. In the calls, 38th

Street gang members discussed keeping Moran quiet about the loss of the firearms

he had provided, for which he sought compensation, by telling him the guns had

been “lost for a good cause.” Moran claimed that these gang members’ concern

over what to tell Moran showed that he did not know what had happened to the

guns. The district court disagreed with this interpretation and inferred that Moran

would not have sought compensation unless he knew they had been confiscated.

While the calls did not conclusively establish Moran’s knowledge, the district

court did not clearly err by finding that they corroborated Alvarez’s testimony. See

United States v. Working, 224 F.3d 1093, 1102 (9th Cir. 2000) (en banc)

(sentencing court’s choice between potential interpretations of ambiguous evidence

cannot constitute clear error).

      2. The district court did not abuse its discretion in applying the Guidelines to

the facts underlying Moran’s offense. Moran argues that the district court

procedurally erred in basing his Guidelines range on clearly erroneous facts. See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (basing a

sentence on clearly erroneous facts is procedural error constituting an abuse of

discretion). As discussed above, however, the district court’s determination that


                                           4
Moran knew of the murder conspiracy was not clearly erroneous. Moran further

contends that the district court procedurally erred in incorrectly calculating his base

offense level. See id. (incorrect calculation of Guidelines constitutes procedural

error). We disagree.

      Section 2E1.1 of the Guidelines applies to Moran’s racketeering conspiracy

conviction and advises a base offense level of either 19 or “the offense level

applicable to the underlying racketeering activity,” whichever is greater. U.S.S.G.

§ 2E1.1. The district court found that the underlying racketeering activity was

conspiracy to commit murder. Thus, the district court applied a base offense level

of 33. U.S.S.G. § 2A1.5.

      The district court based its determination that Moran was, for sentencing

purposes, guilty of conspiracy to murder on its finding that Moran knew of the

conspiracy to murder two individuals when he provided 38th Street Gang members

with guns. Moran does not contest the existence of a murder conspiracy or that

Alvarez and other participants in the racketeering conspiracy committed overt acts

in furtherance of the murder conspiracy. Moran contends, however, that the district

court erred because it could not have found that he had the specific intent to

murder. This assertion overlooks the distinction between the intent necessary for

conviction and the use of relevant conduct for sentencing purposes.


                                           5
      In determining conduct upon which to base a sentence, in the case of a

conspiracy, the district court must look at “all reasonably foreseeable acts . . . of

others in furtherance of the jointly undertaken criminal activity” and “all harm that

was the object of such acts.” U.S.S.G. § 1B1.3(a)(1)(B), (a)(3). The district court

found that Moran’s knowledge of gang members’ plot to kill two individuals when

he provided them with guns meant that Moran would have reasonably foreseen the

murder conspiracy during his participation in the racketeering conspiracy. Thus,

because under § 1B1.3(a)(1)(B) Moran’s relevant conduct encompassed the

reasonably foreseeable acts of his co-conspirators, there was no error in the district

court’s determination that the “underlying racketeering activity” under §

2E1.1(a)(2) was a conspiracy to murder.1 See United States v. Gamez, 301 F.3d

1138, 1147 (9th Cir. 2002) (where murder was reasonably foreseeable based on

defendant’s participation in a conspiracy, the district court appropriately used the

Guidelines section applicable to murder to determine the relevant offense level);

see also United States v. Williams, 434 F. App’x 585, 587-88 (9th Cir. 2011)

      1
         The district court treated the increase in Moran’s base offense level from
19 to 33 under U.S.S.G. § 2E1.1 and § 2A1.5 as a “sentencing factor [that] has an
extremely disproportionate effect on the sentence relative to the offense of
conviction,” thus requiring that the government prove the factor by clear and
convincing evidence. United States v. Herrera-Rojas, 243 F.3d 1139, 1143 (9th
Cir. 2011) (internal quotation marks omitted). Moran has not disputed the district
court’s use of the “clear and convincing” standard.

                                            6
(district court may sentence defendant convicted of conspiracy based on reasonably

foreseeable conduct of others in furtherance of the conspiracy). The district court

therefore did not abuse its discretion in applying U.S.S.G. § 2A1.5 to determine

Moran’s base offense level.

      3. Moran’s sentence of 144 months’ imprisonment is not substantively

unreasonable. A sentence’s substantive reasonableness depends on the “totality of

the circumstances, including the degree of variance for a sentence imposed outside

the Guidelines range,” Carty, 520 F.3d at 993 (citing Gall v. United States, 552

U.S. 38, 51 (2007)). Moran argues that his sentence was substantively

unreasonable because the offense of his conviction, racketeering conspiracy,

carried a much lower Guidelines range than murder conspiracy, the offense upon

which the district court based its Guidelines calculation. However, as discussed

supra, there was no error in the factual basis for or calculation of Moran’s base

offense level, which established Moran’s Guidelines range. Moreover, Moran’s

144-month sentence was 24 months below the low end of his ultimate Guidelines

range. Thus, the sentence’s departure from the Guidelines range is not a factor

Moran can rely upon to advance his argument here.

      The weight given various factors at sentencing under 18 U.S.C. § 3553(a) is

within the district court’s discretion. United States v. Gutierrez-Sanchez, 587 F.3d


                                          7
904, 908 (9th Cir. 2009). The district court considered both the Guidelines range

and other § 3553(a) factors, including Moran’s desire to be with his young

daughter, his history of drug addiction, his association with, rather than

membership in, the 38th Street Gang, his criminal record, the sentences of his co-

defendants, and the danger he poses to society. See United States v. Autery, 555

F.3d 864, 871 (9th Cir. 2009) (in determining substantive reasonableness,

deference must be given to a district court’s decision that § 3553(a) factors justify

a sentence); cf. United States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008)

(district court erred in failing to consider § 3553(a) factors). Thus, Moran’s

sentence was not substantively unreasonable, and the district court did not abuse its

discretion in sentencing him to 144 months’ imprisonment.

      AFFIRMED.




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