                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                                 JUN 30 2015

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

UNITED STATES OF AMERICA,                        No. 14-10034

              Plaintiff - Appellee,              D.C. No. 4:10-cr-03279-TUC-
                                                 JGZ-1
 v.

PAULINO LOPEZ-RIVAS, aka Chapo,                  MEMORANDUM*
aka Paulino Quintero

              Defendant - Appellant.




                   Appeal from the United States District Court
                            for the District of Arizona
                   Jennifer G. Zipps, District Judge, Presiding

                       Argued and Submitted May 13, 2015
                            San Francisco, California

Before: THOMAS, Chief Judge, OWENS, Circuit Judge, and BATTAGLIA,**
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
      Paulino Lopez-Rivas appeals his conviction of conspiracy to possess 1000

kilograms of marijuana with the intent to distribute and the 168-month custodial

sentence imposed by the district court. Lopez-Rivas maintains that a new trial is

warranted because the government failed to disclose material impeachment

evidence about a key government witness in violation of Brady v. Maryland, 373

U.S. 83 (1963). Lopez-Rivas further contends his Fifth and Sixth Amendment

rights were violated by the district court’s failure to declare a mistrial. Finally,

Lopez-Rivas argues the district court erred in calculating his sentencing guidelines

range, specifically by imposing a two-level enhancement for possession of a

firearm and a three-level enhancement for Lopez-Rivas’s role in the conspiracy.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      A district court’s denial of a mistrial based on an alleged Brady violation is

reviewed de novo. United States v. Howell, 231 F.3d 615, 624 (9th Cir. 2000).

Lopez-Rivas argues that his Fifth Amendment Due Process and Sixth Amendment

Confrontation Clause rights were violated by the failure of the government to

disclose a confidential informant’s prior, unrelated work as a paid informant for the

Drug Enforcement Agency (DEA). “Under Brady, the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment.” United States v.


                                            2
Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011) (internal quotation marks omitted).

“There are three components of a Brady violation: [t]he evidence at issue must be

favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully

or inadvertently; and prejudice must have ensued.” Id. (alteration in original)

(internal quotation marks omitted). Lopez-Rivas’s Brady claim fails to establish

suppression because the information was disclosed during trial, at a time when it

was still useful to the defense. See United States v. Vgeri, 51 F.3d 876, 880 (9th

Cir. 1995) (impeachment evidence disclosed during trial was still valuable because

the defense could use it on cross-examination). Moreover, although the

information regarding the confidential informant was favorable to Lopez-Rivas, the

witness’s credibility was sufficiently undermined and Lopez-Rivas cannot

demonstrate prejudice from the mid-trial disclosure. See United States v.

Rodriguez, 766 F.3d 970, 989 (9th Cir. 2014).

      Lopez-Rivas’s Sixth Amendment arguments are similarly unavailing.

Lopez-Rivas claims that his Sixth Amendment right to counsel, his Confrontation

Clause right to effective cross-examination, and his right to present his theory of

defense were violated by the district court’s failure to declare a mistrial following

the disclosure of the witness’s prior status as a DEA informant. The arguments


                                           3
raised by Lopez-Rivas are unsupported by the record and do not warrant a new

trial. Lopez-Rivas expressly disclaims an ineffective assistance of counsel claim.

Moreover, Lopez-Rivas was permitted to present his theory of the defense, one

based largely on discrediting the witness-informant, throughout the trial. Lopez-

Rivas was provided the recently discovered information about the witness’s prior

informant status, given an opportunity to review that information, and then

permitted to continue cross-examination, employing all newly discovered

evidence. The cross-examination of the witness “raised reasonable doubts as to

[the witness’s] motivation for testifying and there was sufficient impeachment

evidence” for the jury to consider, Gentry v. Sinclair, 705 F.3d 884, 905 (9th Cir.

2013), and thus no Confrontation Clause violation occurred. See United States v.

James, 139 F.3d 709, 713 (9th Cir. 1998). Lastly, Lopez-Rivas was not denied the

opportunity to present his theory of the case because the information disclosed at

trial complemented the defense strategy of attacking the credibility of the

government witness.

      Lopez-Rivas argues that the district court erred in calculating his sentencing

guidelines by (1) applying a two-level enhancement for possession of a firearm by

a co-conspirator, (2) applying a three-level enhancement for managerial role, and

(3) denying a downward departure for acceptance of responsibility. A district


                                          4
court’s factual findings in sentencing are reviewed for clear error. United States v.

Doe, 778 F.3d 814, 821 (9th Cir. 2015). No such error ensued. The record reflects

adequate evidence to warrant application of the firearm enhancement, particularly

as actual possession of a firearm is not required. United States v. Lopez-Sandoval,

146 F.3d 712, 714 (9th Cir. 1998); see also U.S. Sentencing Guidelines Manual

§ 1B1.3 cmt. n.2. Likewise, the record supports the district court’s three-level

enhancement for Lopez-Rivas’s role in the conspiracy. Lopez-Rivas’s final

objection to the denial of a downward departure for acceptance of responsibility

was omitted from discussion in his opening brief, and thus was waived. United

States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (discussing exceptions to this

rule not applicable here).

      AFFIRMED.




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