                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 20 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30335

             Plaintiff - Appellee,               D.C. No. 2:08-cr-00082-RSL-4

  v.
                                                 MEMORANDUM *
JUAN SALINAS BAUTISTA, also known
as DJ, also known as Jose Morales
Victoria,

             Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert S. Lasnik, Chief District Judge, Presiding

                        Argued and Submitted July 12, 2010
                               Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.**

       Juan Salinas Bautista appeals his conviction and sentence for (1) conspiracy

to distribute cocaine and cocaine base in the form of crack cocaine under 21 U.S.C.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
§§ 841(a)(1), 841(b)(1)(A), and 846, and (2) possession with intent to distribute

cocaine and cocaine base in the form of crack cocaine under 21 U.S.C. § 841(a)(1)

and 841(b)(1)(B). We affirm.

1.    We find that the government satisfied its statutory burdens under 18 U.S.C.

§ 2518. The government’s applications sufficiently “attest[] that adequate

investigative tactics were exhausted before the wiretap order was sought or that

such methods reasonably appeared unlikely to succeed or too dangerous.” United

States v. Rivera, 527 F.3d 891, 898 (9th Cir. 2008) (citations omitted). Further, the

government acted reasonably in its “good faith efforts to use traditional

investigative tactics or its decision to forego such tactics based on the unlikelihood

of their success or the probable risk of danger involved with their use.” United

States v. Gonzalez, Inc., 412 F.3d 1102, 1112 (9th Cir. 2005). Even if the

government made misstatements and recklessly omitted evidence in its

applications, we do not find that such statements were material to the authorizing

court’s approval of the wiretaps. See United States v. Carneiro, 861 F.2d 1171,

1176 (9th Cir. 1988) (“If an application is inaccurate, the reviewing court must

determine the true facts and rely on the credible evidence produced at the

suppression hearing to determine whether a reasonable district court judge could




                                           2
have denied the application because necessity for the wiretap had not been shown.”

(citation and quotation marks omitted)).

2.    For similar reasons, Bautista is not entitled to develop a record supporting

his argument for suppression, through a Franks hearing,1 because he has failed to

make “a substantial preliminary showing that the affidavit[s] contained

intentionally or recklessly false statements, and that the affidavit purged of its

falsities would not be sufficient to support a finding of probable cause.” United

States v. Meling, 47 F.3d 1546, 1553 (9th Cir. 1995) (internal quotation marks

omitted).

3.    Bautista bases his ineffective assistance of counsel claim upon the fact that,

in arguing for a Franks hearing, his counsel did not direct the district court to

United States v. Rivera, 527 F.3d 891 (9th Cir. 2008). However, we find that

Rivera offers no support for Bautista’s position; thus, the failure to direct the

district court to that opinion was not ineffective assistance. Furthermore, having

found the wiretaps proper, Bautista cannot demonstrate prejudice. See Strickland

v. Washington, 466 U.S. 668, 691–92 (1984).

4.    At sentencing, the court considered the guideline range as well as § 3553(a)

factors. The court was presented with mitigating and aggravating facts from both


      1
             Franks v. Delaware, 438 U.S. 154 (1978).

                                           3
Bautista and the government. On the evidence set before it, the court did not abuse

its discretion by imposing a term of 136 months. See United States v. Carty, 520

F.3d 984, 993–94 (9th Cir. 2008) (en banc).

      AFFIRMED.




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