Opinion
Argued and Submitted August 7, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendants were convicted in the United States District Court for the District of Alaska, H. Russel Holland, J., of drug trafficking, and they appealed. The Court of Appeals held that affidavit in support of application for wiretap was not fatally defective.
Affirmed.
Page 613.
Appeal from the United States District Court for the District of Alaska, H. Russel Holland, District Judge, Presiding.
Before SCHROEDER, Chief Judge, T.G. NELSON and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Juan Francisco R. Valera and Gerson Nunez appeal their sentences, arguing that they were imposed in violation of the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Nunez additionally contends the district court should have granted his motion to suppress the evidence obtained from a wiretap.
Defendants were sentenced before the Supreme Court decided Apprendi so the arguments now raised with respect to their sentences were not raised in the district court. We conclude that there was no plain error. Even if we refuse to accept the defendants' stipulation that more than 50 grams of cocaine base were involved in two of the counts of the indictment, a quantity qualifying them for a term of life imprisonment, both were sentenced to a term well below the statutory maximum. Valera was charged with distributing and conspiring to distribute cocaine with a prior conviction, and therefore faced a maximum penalty of 30 years. 21 U.S.C. § 841(b)(1)(C). He was sentenced to 27 years. Nunez faced a maximum of 20 years and received a sentence of 12 1/2 years. Id.
The government supported its application for a wiretap with a proper affidavit discussing why the wiretap was necessary. The affidavit supporting the application detailed the limitations of other law enforcement strategies that had been tried. It was not fatally defective because it failed to mention that, two days before applying for the wiretap, the investigating officers had applied for a warrant to search. See U.S. v. Spagnuolo, 549 F.2d 705, 710 (9th Cir.1977)(finding that a wiretap authorization was warranted even if the government did not "exhaust every conceivable alternative before obtaining wiretap"). In addition, there is no indication that the government deliberately falsified or withheld material information. Cf. Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
AFFIRMED.