United States v. Lococo

PER CURIAM: Defendants pled guilty to conspiring to possess and distribute cocaine. We consider the government’s application for the wiretap on which its case was built, an allegation of prosecutorial misconduct and the constitutionality of defendants’ sentences. 1. The wiretap application describes the investigative techniques the police tried and explains how they failed: Confidential informants were either incarcerated, unwilling to testify or else distrusted by the targets; efforts to recruit other informants failed; and attempts to gather evidence by other means&emdash;includ-ing direct and hidden surveillance, trash searches and searches of paroled gang members’ homes&emdash;yielded nothing. Defendants haven’t shown any basis to doubt the application’s representations. “Law enforcement officials need not exhaust every conceivable investigative technique before seeking a wiretap order.” United States v. Staves, 383 F.3d 977, 982 (9th Cir.2004). The district court didn’t abuse its discretion in finding that the application justified the wiretap. *959 2. Defendants haven’t shown that the wiretap application contained false statements or material omissions, so there was no need for a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The claim that Special Agent King reviewed Jackson’s calls since March 2002 isn’t demonstrably false; though the police’s pen register authority only began in July of that year, King also had Jackson’s telephone toll records, which may have reached back to March. Nor did the application understate informant CS-l’s closeness to Jackson; on the contrary, it acknowledged that CS-1 could buy drugs from her. Though the application didn’t mention that Jackson was in the Blood Stone Villains gang, that didn’t matter; the point was that Jackson’s boyfriend was in the target Pueblo Street Bishops gang. Nor was there any reason for the application to mention Lococo or the sources close to him, as he wasn’t the wiretap’s target. 3. Defendants haven’t shown that the government’s failure to produce its recordings of Lococo’s phone calls prejudiced anyone’s defense or affected anyone’s decision to plead guilty. See United States v. Tucker, 8 F.3d 673, 675 (9th Cir.1993). The district court didn’t abuse its discretion by not dismissing the indictment. 4. In his plea colloquy, Lococo waived his right to have a jury determine the amount of drugs the conspiracy sold. There was no need for the district court to advise him of this right at sentencing. Lococo’s plea agreement reserved the government’s right to “supplement the facts stipulated” and to “seek any sentence within the statutory maximum,” so offering additional evidence at sentencing didn’t breach the agreement. Though Lococo denied knowing that his co-conspirators converted the powder cocaine he sold them into crack cocaine, he admitted that he joined a conspiracy to distribute crack. The district court therefore didn’t violate the Sixth Amendment when it sentenced him based on the crack his co-conspirators distributed. See United States v. Mercado Irizarry, 404 F.3d 497, 504 (1st Cir.2005) (“[T]he maximum statutory penalty available to the district court at sentencing for a defendant convicted of a drug conspiracy is based on the drug quantity and amount ... attributable to the conspiracy as a whole.”). 5. Edwards admitted that he joined a conspiracy to distribute over 50 grams of crack cocaine and that he had a prior drug felony trafficking conviction. Because those admissions suffice to support a sentence of life in prison, see 21 U.S.C. § 841(b)(1), the additional facts the court found at sentencing didn’t increase the maximum sentence for which he was eligible. The court’s fact-finding therefore did not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 6. In their plea agreements, Loco-co and Edwards waived the right to appeal their sentences. Edwards claims his waiver wasn’t valid, but his plea colloquy shows he waived the right knowingly and voluntarily. These waivers bar defendants from appealing the district court’s interpretation of the Guidelines, its calculation of the Guidelines range, its alleged failure to consider the sentencing factors in 18 U.S.C. § 3553(a), and'the reasonableness of the sentences imposed. We therefore dismiss these portions of defendants’ appeals. DISMISSED in part and AFFIRMED in part.