NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ISAACK HOLLISTER PAOPAO, 

Defendant-Appellant.

No. 16-10283 

D.C. No. 

3:13-cr-00327-CRB-2 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted March 12, 2018

San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,**

District Judge.

Isaack Paopao appeals his conviction and sentence for conspiracy to 

distribute and to possess with intent to distribute a controlled substance under 21 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Gary Feinerman, United States District Judge for the 

Northern District of Illinois, sitting by designation.

FILED

JUN 4 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-10283 

U.S.C. §§ 841(b)(1)(C) and 846, and for using a communication facility to commit 

a drug-trafficking offense under 21 U.S.C. § 843(b). 

1. The district court properly denied Paopao’s motion to dismiss the indictment 

under the Double Jeopardy Clause. During his first trial, Paopao moved for and 

received a mistrial when the government’s key witness, Akapana Mauga, to whom 

it had referred repeatedly throughout trial, did not appear to testify. “[W]here the 

defendant moves for a mistrial,” the general rule is that “the Double Jeopardy 

Clause is no bar to retrial.” Oregon v. Kennedy, 456 U.S. 667, 673 (1982). There 

is a “narrow exception” to that rule, id., for “cases in which the conduct giving rise 

to the successful motion for a mistrial was intended to provoke the defendant into 

moving for a mistrial,” id. at 679. Our review of the factual findings underlying 

the district court’s denial is for clear error. See United States v. Lopez-Avila, 678 

F.3d 955, 961 (9th Cir. 2012). 

The district court did not clearly err in finding that the government did not 

intentionally provoke Paopao into moving for a mistrial by referring to Mauga at 

trial. As one of the prosecutors averred, the government had good reason to think

that Mauga would appear to testify. Mauga entered into a plea agreement stating 

that he would testify at the government’s request, and he attended six pretrial 

meetings to prepare for his testimony. On the morning of the first day of trial, 

Mauga told a DEA agent by phone that he was on his way to the courthouse. Later 
3 16-10283 

that afternoon, after it became clear that Mauga was defying the subpoena, the 

government obtained a bench warrant for his arrest. As the district court recalled 

in denying Paopao’s motion to dismiss, the prosecutors that day “were in sort of a 

state of panic ... basically demanding that I sign a bench warrant within 15

minutes of receiving it.”

Based on the prosecutor’s averments and its own observation of the 

prosecutors at trial, the district court was amply justified in finding that the 

government “had an expectation that the witness would appear,” and thus that the 

government’s references to Mauga during its opening statement and its subsequent 

introduction of Mauga’s phone calls and conversations were not intended to 

provoke Paopao into moving for a mistrial.1

2. Because Paopao did not object in the district court to its invocation of 18 

U.S.C. § 3553(a)(6) when it imposed an above-Guidelines sentence to match the 

sentence of Paopao’s fellow courier in the same conspiracy, Vani Melei, we review 

for plain error. See United States v. Autery, 555 F.3d 864, 869-70 (9th Cir. 2009). 

On plain error review, Paopao must establish that the district court’s error was 

 

1 Nor was it an abuse of discretion for the district court to decline to hold an 

evidentiary hearing on the issue. Particularly given the district court’s extensive 

involvement with this case, the court was not required to hold a hearing when 

“[t]here [was] nothing in the record that call[ed] into question the veracity of the 

prosecutor’s representations.” See United States v. Hagege, 437 F.3d 943, 953 (9th

Cir. 2006).
4 16-10283 

plain and affected his substantial rights. See United States v. Sylvester Norman 

Knows His Gun III, 438 F.3d 913, 918 (9th Cir. 2006).

“Congress’s primary goal in enacting § 3553(a)(6) was to promote national 

uniformity in sentencing rather than uniformity among co-defendants in the same 

case.” United States v. Saeteurn, 504 F.3d 1175, 1181 (9th Cir. 2007) (quoting 

United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006)). Regardless of the 

applicability of § 3553(a)(6) to co-defendants, Paopao cannot show that the district 

court’s decision to match his sentence with Melei’s was erroneous because the 

decision was appropriate under § 3553(a)(1). As we explained in United States v. 

Saeteurn, a district court may compare co-defendants “to ascertain each 

defendant’s role in the drug conspiracy” as part of an evaluation of “the nature and 

circumstances of the offense” under § 3553(a)(1). 504 F.3d at 1181. That is 

precisely what happened here. Although it cited § 3553(a)(6), the district court 

explained that it was concerned with “the comparability of the commission of the 

offense,” and it concluded that the actions of Paopao and Melei, who served in the 

same conspiracy, were “quite similar.” Because it found their conduct similar, the 

district court could permissibly regard Melei’s sentence as a “benchmark.” 

The fact that the district court believed there to be insufficient evidence to

attribute any particular quantity of drugs to Paopao does not make his offense 

incomparable to Melei’s. The district court simply lacked the information to arrive 
5 16-10283 

at a specific quantity for Paopao; it did not conclude that Paopao had conspired to 

distribute only a negligible quantity of drugs or even a lesser quantity than Melei.

AFFIRMED.