FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 04-30082

v.  D.C. No.

ARMANDO LABRADA-BUSTAMANTE, CR-03-02098-EFS

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-AppelleeNos. 04-30159 Cross-Appellant,

04-30189

v. 

D.C. No.

CATALINO BARANDA-GALLARDO, CR-03-02099-EFS

Defendant-AppellantCross-Appellee. 

UNITED STATES OF AMERICA, 

No. 04-30175 Plaintiff-Appellee,

D.C. No.

v.  CR-03-02097-EFS

ROBERTO DUARTE-CRUZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted

April 4, 2005—Seattle, Washington

Filed November 10, 2005

15259
Before: Ronald M. Gould, Richard C. Tallman, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson

15260 UNITED STATES v. LABRADA-BUSTAMANTE
COUNSEL

Nicholas Marchi, Carney & Marchi, P.S., Kennewick, Washington, for appellant Armando Labrada-Bustamante. 

James E. Egan, Kennewick, Washington, for appellant

Roberto Duarte-Cruz. 

Sam Swanberg, Law Offices of Sam Swanberg, Kennewick,

Washington, for appellant/cross-appellee Catalino BarandaGallardo. 

K. Jill Bolton, Assistant United States Attorney, Yakima,

Washington, for appellee/cross-appellant United States of

America.

OPINION

RAWLINSON, Circuit Judge: 

Defendants Armando Labrada-Bustamante (Labrada),

Roberto Duarte-Cruz (Duarte), and Catalino BarandaGallardo (Baranda) were convicted by a jury in the United

States District Court for the Eastern District of Washington of

conspiracy to distribute a controlled substance, methamphetamine (meth), in violation of 21 U.S.C. § 846. After determining that the quantity of meth involved in the proposed sale

was five pounds, the court sentenced both Labrada and Duarte

to 151-month terms of imprisonment. Baranda was sentenced

to a term of 87 months. The defendants appealed, and the

government cross-appealed Baranda’s sentence. We have

jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons discussed below, we affirm the convictions, vacate the sentences,

and remand to the district court for re-sentencing. 

15264 UNITED STATES v. LABRADA-BUSTAMANTE
I

FACTS AND PROCEDURAL HISTORY

In February of 2003, Drug Enforcement Agent Alonzo

Garza was contacted by an informant, who indicated that an

individual in Phoenix, Arizona, was willing to bring approximately forty pounds of meth to Yakima, Washington. Agent

Garza traveled to Phoenix and met with Jesus Martin Terrazas, who stated that he could supply the amount of meth

through a man named Roberto. Terrazas then introduced

Agent Garza to Duarte and Labrada. 

Labrada told Agent Garza that he could supply the forty

pounds of meth, but, because the two did not know each

other, he preferred to start with five pounds. Labrada quoted

Agent Garza a price of $12,000 per pound—more expensive

than the meth in Yakima because, according to Labrada, it

was pure and coming directly from Mexico. Labrada also

stated that Agent Garza could “cut it up to four times,” making four pounds out of one. 

Terrazas was subsequently arrested in Yakima during a

meth transaction not involving Labrada or Duarte. Choosing

to cooperate with the government, he contacted Duarte on

behalf of Agent Garza to arrange a delivery of meth to Garza

in Yakima. Agent Garza and Duarte spoke several times to

discuss the delivery of the five pounds of meth. Duarte told

Agent Garza during one conversation that he could provide

him with ice methamphetamine (ice) as well. They agreed that

one pound of ice would be delivered in addition to the five

pounds of meth. Although delivery was arranged, the drug

deal was never consummated. The two sides lost contact until

Duarte phoned Agent Garza to inquire whether Agent Garza

was still interested in buying the meth. When Agent Garza

replied that he was, the sale of five pounds of meth for

$12,000 was again agreed upon. 

Duarte called Agent Garza again because, according to

Duarte, his “source” wanted to talk. Agent Garza identified

UNITED STATES v. LABRADA-BUSTAMANTE 15265
that source as Labrada. Labrada indicated that he had a

“hand” and “five fingers”—drug lingo for five pounds of

product. Duarte and Labrada drove to Las Vegas to pick up

Baranda, who then drove the three to Portland, Oregon. From

Portland, Duarte contacted Agent Garza to negotiate a meeting locale. Agent Garza, Duarte, and Labrada eventually met

at a Denny’s in Union Gap, Washington. Baranda remained

in a motel room rented by the defendants. 

During the meeting, possible future transactions were discussed, and Labrada asked Agent Garza if the agent could

supply a car with Washington plates equipped with a hidden

compartment. The discussion eventually shifted to how the

present transaction would be finalized. Labrada assured Agent

Garza that he would not abscond with the money, even offering to be held by Agent Garza for ransom. After numerous

unsuccessful attempts to reach mutually agreeable terms, the

meeting concluded. Even as they were leaving, however,

Labrada attempted to consummate a deal. He told Agent

Garza that there was more meth in Phoenix and that if things

went well, he could simply make a call and the product would

be brought up to Yakima. 

After the meeting concluded, the Drug Enforcement

Administration (DEA) instructed the Washington State Patrol

to stop defendants’ car.1 DEA Agent Meliton Rodriguez, the

local agent overseeing the investigation and undercover operation, arrived on the scene a few minutes after the stop. Agent

Rodriguez, a native Spanish speaker, individually advised

each defendant of his Miranda2 rights in Spanish using a DEA

Form 13A.3 Duarte and Labrada said nothing in response

except that they understood their rights. In response to Agent

Rodriguez’s suggestion that he knew Duarte and Labrada

1By this time, Baranda had reunited with Duarte and Labrada. 

2Miranda v. Arizona, 384 U.S. 436 (1966). 

3A DEA Form 13A states the Miranda warnings in both English and

Spanish. 

15266 UNITED STATES v. LABRADA-BUSTAMANTE
were in Yakima to sell meth, Baranda asked, “[d]id you ever

think that there might be another car involved?” Baranda consented to a search of the vehicle; no drugs or weapons were

found. 

The defendants were taken to the DEA offices in Yakima,

where Rodriguez separately interviewed each one. During

questioning, Baranda admitted that he knew he was going to

Washington to be involved in a drug deal. Duarte did not

respond when told that the DEA knew he was involved in a

drug deal. However, when asked if it was his intent to simply

steal the money from Agent Garza, Duarte responded that it

was not. Labrada admitted to Agent Rodriguez that he was in

Yakima to do a drug deal with Agent Garza. When asked

about the location of the meth, Labrada indicated that it was

with a man named Ernesto, the source supplier of meth in

Yakima. However, Ernesto was never located. 

Duarte, Labrada, and Baranda were charged with one count

of conspiracy to distribute a controlled substance in violation

of 21 U.S.C. § 846. Labrada filed a motion to suppress statements made by him to Agent Rodriguez, which Duarte joined.

At the suppression hearing, Agent Rodriguez testified that he

read the Miranda warnings to each defendant, in Spanish and

using a DEA Form 13A. He further testified that before questioning the defendants, he reminded them of their rights, summarized those rights, and asked them whether they understood

those rights. Each defendant indicated that he did. No threats

or promises were made to any of the defendants during the

interviews. 

Agent Gilliam, who was present during the interviews, corroborated Agent Rodriguez’s testimony. Agent Gilliam testified that no defendant expressed any confusion about what

those rights meant. The district court specifically found that

Agent Rodriguez read each defendant his rights at the initial

stop, summarized those rights at the station, and elicited a

response that each defendant understood his rights. After conUNITED STATES v. LABRADA-BUSTAMANTE 15267
sidering the totality of the circumstances, the court ruled that

the defendants’ statements were voluntary, and the motion to

suppress was denied. 

After a three-day jury trial, the defendants were convicted

as charged. For sentencing purposes, the court used the agreed

upon amount of meth—five pounds—resulting in a base

offense level of 34 and a sentence range of 151 to 188

months. U.S. Sentencing Guidelines Manual (USSG)

§ 2D1.1(c)(3) (2002).4 Labrada and Duarte were each sentenced to 151-month terms of imprisonment. Baranda was

sentenced to 87 months in prison after the court sustained

Baranda’s collateral challenge to the California felony drug

conviction used to calculate Baranda’s criminal history score.

Labrada now challenges the district court’s denial of his

motion to suppress and his Rule 29 motion based on the sufficiency of the evidence. He also contends that he received

ineffective assistance of counsel during sentencing and that

the district court violated his Sixth Amendment rights by sentencing him based on a quantity of meth not found by the jury

beyond a reasonable doubt. Duarte similarly challenges the

denial of the motion to suppress and the district court’s drug

quantity determination. Duarte also contends that the “safety

valve” factors under 18 U.S.C. § 3553(f) are unconstitutional

because their consideration requires findings of fact by the

district court and not a jury. Finally, Baranda challenges his

sentence because it is based upon a factual finding, the quantity of meth, made by the district court and not a jury. 

The government cross-appeals Baranda’s sentence on the

basis that the district court erred in allowing Baranda to collaterally challenge his prior conviction. 

4

It appears that the defendants were sentenced using the 2002 version

of the Guidelines. However, this section is the same in the 2002, 2003, and

2004 versions of the United States Sentencing Guidelines. See USSG

§ 2D1.1(c)(3) (2002); USSG § 2D1.1(c)(3) (2003); USSG § 2D1.1(c)(3)

(2004). 

15268 UNITED STATES v. LABRADA-BUSTAMANTE
II

DISCUSSION

A. Labrada-Bustamante

1. Motion to suppress

Labrada challenges the district court’s denial of his motion

to suppress, asserting that he could not have voluntarily or

knowingly waived his rights because, as a Mexican national,

he was not familiar with the United States’ justice system and

did not understand what his rights meant. 

A decision on a motion to suppress is reviewed de novo.

United States v. Charley, 396 F.3d 1074, 1079 (9th Cir.

2005). “We review the voluntariness of a waiver of Miranda

rights de novo.” United States v. Younger, 398 F.3d 1179,

1185 (9th Cir. 2005) (citation omitted). “Whether the decision

was knowing and intelligent is reviewed for clear error.” Id.

(citation omitted). 

[1] The validity of a Miranda waiver depends on the totality of the circumstances and whether the defendant “was

aware of the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. (citation and

internal quotation marks omitted). 

The district court credited Agent Rodriguez’s testimony

that each defendant stated awareness and understanding of his

rights. We give “special deference” to credibility determinations and are “especially reluctant” to set aside such determinations. United States v. Becerra-Garcia, 397 F.3d 1167,

1172 (9th Cir. 2005) (citations omitted). In addition, Labrada

acknowledged on cross-examination that he understood what

it meant to have the right to remain silent. 

[2] Agent Rodriguez was not required to explain to Labrada

what the Miranda rights meant. The fact that Labrada might

UNITED STATES v. LABRADA-BUSTAMANTE 15269
not be familiar with the United States’ form of justice is

merely one factor to be considered. See, e.g., United States v.

Frank, 956 F.2d 872, 877 (9th Cir. 1991), as amended, (stating that “[w]hen considering the totality of the circumstances,

relevant factors include age, experience, education, background and intelligence.”) (citation, internal quotation marks,

and alteration omitted). Considering the totality of the

circumstances—including Agent Rodriguez’s testimony and

Labrada’s admission that he understood his rights—the district court’s finding that Labrada knew and understood his

rights is not clearly erroneous. 

[3] Labrada’s Miranda waiver was also voluntary. There

was no evidence in the record of “police overreaching,” and

both agents testified that no threats or promises were made to

any of the defendants. See United States v. Cazares, 121 F.3d

1241, 1244 (9th Cir. 1997) (stating that “the voluntariness of

a waiver has always depended on the absence of police overreaching.”) (citation and internal quotation marks omitted).

Therefore, we hold that the district court properly denied

Labrada’s motion to suppress.

2. Sufficiency of the evidence

Labrada contends that because there was no meth ever

found on him or his co-defendants, and because he continually maintained that his true intent was to steal money, not sell

meth, the evidence was insufficient to support the jury’s finding that he intended to distribute a controlled substance. 

“We review de novo the denial of a motion for a judgment

of acquittal based on the alleged insufficiency of the evidence.” United States v. Pearson, 391 F.3d 1072, 1075 (9th

Cir. 2004) (citation omitted). “[V]iewing the evidence in the

light most favorable to the government, we must determine

whether any rational trier of fact could have found, beyond a

reasonable doubt, the requisite elements of the offense

charged.” Id. (citation omitted). 

15270 UNITED STATES v. LABRADA-BUSTAMANTE
[4] “To establish a drug conspiracy, the government must

prove: 1) an agreement to accomplish an illegal objective and

2) the intent to commit the underlying offense.” United States

v. Romero, 282 F.3d 683, 687 (9th Cir. 2002) (citation omitted). In this case, the underlying offense was the distribution

of fifty grams or more of meth. Thus, the government was

required to prove that Labrada intended to distribute at least

fifty grams of meth. “Culpable intent can be inferred from the

defendant’s conduct and from the surrounding circumstances.” United States v. Bucher, 375 F.3d 929, 934 (9th Cir.

2004) (citations and alteration omitted). 

[5] There was extensive evidence in this case from which

a rational jury could infer that Labrada had the requisite intent

to distribute meth. Agent Garza engaged in extensive negotiations for the sale of meth with both Labrada and Duarte.

Labrada used expressions common in the drug trade and the

defendants drove from Phoenix to Yakima to consummate the

transaction. At the meeting in Washington, Labrada attempted

to negotiate the exchange, even offering to remain with Agent

Garza for ransom until the deal was completed. When negotiations stalled, Labrada persisted in attempting to make the

sale. Finally, Labrada admitted to Agent Rodriguez that he

was in Washington for a drug deal. 

[6] Viewing this evidence in the light most favorable to the

government, and drawing all reasonable inferences against

Labrada, as we must, United States v. Rodriguez, 360 F.3d

949, 955 (9th Cir. 2004), the evidence was sufficient for a

rational jury to find, beyond a reasonable doubt, that Labrada

intended to distribute fifty grams or more of meth.

3. Ineffective assistance of counsel 

“Effectiveness of counsel is a mixed question of law and

fact, reviewed de novo.” United States v. Jeronimo, 398 F.3d

1149, 1155 n.3 (9th Cir. 2005) (citation omitted). “[A]s a general rule, we do not review challenges to the effectiveness of

UNITED STATES v. LABRADA-BUSTAMANTE 15271
defense counsel on direct appeal.” Id. at 1155 (citation omitted). However, we have developed “two extraordinary exceptions to this general rule: . . . (1) where the record on appeal

is sufficiently developed to permit determination of the issue,

or (2) where the legal representation is so inadequate that it

obviously denies a defendant his Sixth Amendment right to

counsel.” Id. at 1156 (citation omitted). The record in this

case is sufficiently developed for us to determine that Labrada

did not receive ineffective assistance of counsel. 

[7] Labrada’s ineffective assistance claim rests on his trial

counsel’s failure to submit written objections to the Presentence Report (PSR) before sentencing. Although Labrada’s

counsel did fail to submit written objections, he orally

objected to portions of the PSR at the sentencing hearing.

Although the district court stated that the objections should

have been made in writing, it accepted and considered the

objections nonetheless. In fact, the court sustained counsel’s

objection to the two-level obstruction of justice enhancement.

Assuming, without deciding, that counsel’s performance was

deficient, because the court considered the objections,

Labrada cannot make the requisite showing of prejudice, i.e.,

that the result of the proceeding would have been different.

See United States v. Fredman, 390 F.3d 1153, 1156 (9th Cir.

2004) (stating that a defendant must show prejudice to establish a claim of ineffective assistance of counsel, meaning “that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”) (citation omitted).

4. Quantity of meth for sentencing

Labrada challenges the district court’s use of five pounds

as the quantity of meth involved in the offense for purposes

of establishing his base offense level. He argues that this finding by the court violated his Sixth Amendment right to have

a jury determine the quantity of drugs beyond a reasonable

doubt. We “review de novo whether the district court violated

15272 UNITED STATES v. LABRADA-BUSTAMANTE
the constitutional rule articulated in Apprendi.” United States

v. Smith, 390 F.3d 661, 663 (9th Cir. 2004) (citation omitted).

[8] To comply with the requirements of the Sixth Amendment, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). In Blakely v. Washington, 124 S. Ct.

2531 (2004), the United States Supreme Court explained that

“the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the

facts reflected in the jury verdict or admitted by the defendant.” Id. at 2537 (citations and internal quotation marks

omitted) (emphasis in the original). The Court’s decision in

Blakely applies to the United States Sentencing Guidelines.

See United States v. Booker, 125 S. Ct. 738, 746 (2005). 

[9] Although the jury found the defendants guilty of conspiring to distribute only fifty grams or more of methamphetamine, Labrada admitted under oath that the amount of meth

involved in the proposed sale was five pounds. Therefore, the

use of five pounds to determine his base offense level violates

neither Apprendi nor Blakely. See id. at 756 (“[W]e reaffirm

our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant or

proved to a jury beyond a reasonable doubt.”) (emphasis

added). 

[10] Despite the lack of a Sixth Amendment violation, we

vacate Labrada’s sentence and remand his case to the district

court for re-sentencing. At Labrada’s sentencing hearing, the

district court expressly advised the parties that the sentence

was beyond his control. He stated, “[T]he kind of penalties

that [the] Congress of the United States has imposed . . . are

very, very severe and I have no control over those. You’re

UNITED STATES v. LABRADA-BUSTAMANTE 15273
facing more than 12 years in prison which is an extraordinarily long time for a first offender on a case where — of a case

involving the kind of behavior that this case involved . . .” In

United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005)

(en banc), we held that a limited remand is appropriate,

“where it is not possible to reliably determine from the record

whether the sentence imposed would have been materially

different had the district court known that the Guidelines were

advisory . . .” On the other hand, re-sentencing is appropriate

where we can reliably determine from the record that the sentence imposed would have differed materially. See United

States v. Crawford, 422 F.3d 1145, 1146 (9th Cir. 2005). As

Labrada’s case is one of those rare cases where the district

court stated on the record that he felt compelled to impose a

harsher sentence because of the mandatory nature of the

Guidelines, a remand for re-sentencing is appropriate. Id.

B. Duarte-Cruz

1. Motion to suppress

Like Labrada, Duarte challenges the voluntariness of his

Miranda waiver. He maintains that his silence at the scene of

the arrest, coupled with Agent Rodriguez’s failure to obtain

an express statement of waiver, demonstrates that he did not

voluntarily waive his rights. However, an express waiver is

not required for a valid Miranda waiver. See, e.g., United

States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir.

2005) (“Waivers of Miranda rights need not be explicit; a suspect may impliedly waive the rights by answering an officer’s

questions after receiving Miranda warnings.”) (citation omitted). Duarte’s acknowledgment that he understood his rights,

and the absence of “police overreaching,” persuade us that

Duarte knowingly and intelligently waived his Miranda rights

and that the waiver was voluntary. 

15274 UNITED STATES v. LABRADA-BUSTAMANTE
2. The “safety valve” provision of 18 U.S.C.

§ 3553(f)

Duarte challenges the denial of his request for application

of the “safety valve” provision of 18 U.S.C. § 3553(f) to

avoid the ten-year statutory mandatory minimum provided in

21 U.S.C. § 841(b)(1)(A). Duarte does not quarrel with the

district court’s finding that he failed to give a truthful statement about the complete circumstances of the offense.5

Id.

Instead, he claims that the five factors enumerated in section

3553(f) are unconstitutional under Blakely because each

requires a finding by a judge rather than a jury. 

“The constitutionality of a statute is a legal question of law

that we review de novo.” Younger, 398 F.3d at 1192 (citation

omitted). “[A]ny fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” Apprendi,

530 U.S. at 490 (emphasis added). 

[11] The statutory mandatory minimum sentences under 21

U.S.C. § 841(b) are not triggered unless and until a jury has

found, beyond a reasonable doubt, the quantity of a controlled

substance. See United States v. Velasco-Heredia, 319 F.3d

1080, 1086 (9th Cir. 2003) (stating that after Apprendi, the

statutory mandatory minimum sentences under 21 U.S.C.

§ 841 do not apply “until the jury, or the court in a bench trial,

finds beyond a reasonable doubt [ ] the quantity involved in

the violation.”). Because mandatory minimum sentences

under section 841(b) presuppose a jury’s determination of the

underlying facts, their imposition does not offend either

Apprendi or Blakely. See United States v. Hitchcock, 298 F.3d

5The last of five factors that the sentencing court must find under

§ 3553(f) states, in part, that “not later than the time of the sentencing

hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses

. . . .” 18 U.S.C. § 3553(f)(5) (2000). 

UNITED STATES v. LABRADA-BUSTAMANTE 15275
1021 (9th Cir. 2002), as amended, (holding that “mandatory

minimums do not implicate Apprendi.”) (citation omitted).

Duarte would have us hold that facts allowing a decreased

sentence below that mandatory minimum must be found by a

jury beyond a reasonable doubt as well. Neither Apprendi nor

Blakely compel such a holding. Therefore, we hold that the

safety valve provision of 18 U.S.C. § 3553(f) is not unconstitutional under Apprendi or Blakely. However, because the district court sentenced Duarte under the then-mandatory

Guidelines, we also vacate his sentence and remand for resentencing. As with Labrada, the district court expressly

lamented the mandated sentence, stating that it was “struggling . . . because it would like to find a way to give [Duarte]

less time.” The court’s statement justifies concluding that the

sentence would have differed materially under advisory

Guidelines. See Ameline, 409 F.3d at 1084.

C. Baranda-Galardo

The only issue raised by Baranda is whether the district

court violated his Sixth Amendment rights by using five

pounds of meth in determining his base offense level. Unlike

Labrada or Duarte, Baranda never made an admission as to

the quantity of meth involved in the proposed sale to Agent

Garza. However, Baranda faced a statutory minimum sentence of twenty years predicated upon the jury’s finding that

the defendants conspired to distribute fifty grams of methamphetamine and upon Baranda’s prior drug conviction. As a

result, the court’s attribution of five pounds of meth to

Baranda did not constitute Apprendi error. See Harris v.

United States, 536 U.S. 545, 557, 565 (2002); see also United

States v. Dare, No. 04-30202, 2005 WL 2319653, at *8 (9th

Cir. Sept. 23, 2005) (noting that Booker has no application to

a mandatory minimum sentence and that the outcome of resentencing “could not possibly be different” where a mandatory minimum sentence is imposed).

15276 UNITED STATES v. LABRADA-BUSTAMANTE
D. Government’s cross-appeal

As noted above, because Baranda had a prior felony drug

conviction, he faced a mandatory minimum sentence of

twenty years. See 21 U.S.C. § 841(b) (1999 & Supp. 2005).

The district court allowed Baranda to collaterally attack the

prior conviction, a decision that we review de novo. See

United States v. Hernandez-Vermudez, 356 F.3d 1011, 1013

(9th Cir. 2004). 

[12] Although a defendant may collaterally attack a prior

conviction used to enhance his sentence,6 no collateral challenge may be made if the prior conviction is more than five

years old. 21 U.S.C. 851(e).7 The district court allowed

Baranda to attack the conviction for the purpose of computing

criminal history points, and the court sustained the attack. As

a result, Baranda had zero criminal history points, making

him eligible for the “safety valve” provision of 18 U.S.C.

§ 8553(f).8 The court found that Baranda satisfied the “safety

valve” requirements and sentenced him to an 87-month prison

term. 

6Such a challenge is made under section 851(c), which states, in part:

If the person denies any allegation of the information of prior

conviction, or claims that any conviction alleged is invalid, he

shall file a written response to the information . . . . The court

shall hold a hearing to determine any issues raised by the

response which would except the person from increased punishment. 

21 U.S.C. § 851(c). 

7Section 851(e) states that “[n]o person who stands convicted of an

offense under this part may challenge the validity of any prior conviction

alleged under this section which occurred more than five years before the

date of the information alleging such prior conviction.” 21 U.S.C.

§ 851(e). Baranda’s prior conviction was entered on May 22, 1997, and

the government’s information in this case was filed on August 19, 2003.

8The first prerequisite for the “safety valve” provision is that the defendant not have more than one criminal history point. 18 U.S.C.

§ 3553(f)(1). 

UNITED STATES v. LABRADA-BUSTAMANTE 15277
[13] Baranda concedes, as he must, that he could not collaterally attack his prior conviction as the district court allowed.

See United States v. Burrows, 36 F.3d 875, 885 (9th Cir.

1994) (holding that a defendant cannot collaterally challenge

a prior conviction used to calculate criminal history points);

see also Clawson v. United States, 52 F.3d 806, 807 (9th Cir.

1995) (concluding that a defendant has “no constitutional

right to collaterally attack the validity of a state conviction in

a federal sentencing hearing on any basis other than denial of

the right to counsel.”) (citation omitted). 

Although acknowledging the district court’s error, Baranda

argues that any sentencing error was harmless because there

was insufficient evidence to prove he was involved in the conspiracy. This issue should have been raised in Baranda’s

opening brief and is therefore waived. United States v. Kama,

394 F.3d 1236, 1238 (9th Cir. 2005) (“Generally, an issue is

waived when the appellant does not specifically and distinctly

argue the issue in his or her opening brief.”) (citation omitted). In any event, Baranda’s admission that he went to Washington to be involved in a drug deal was sufficient evidence

of his involvement in the conspiracy. See United States v.

Alvarez, 358 F.3d 1194, 1201 (9th Cir. 2004) (“When the evidence establishes that a conspiracy exists, there is sufficient

evidence to support a conviction for knowing participation in

that conspiracy if the government is able to establish, beyond

a reasonable doubt, ‘even a slight connection’ between the

defendant and the conspiracy.”) (citations omitted). 

Baranda’s next claim is that the government failed to provide sufficient proof of his prior conviction. Because Baranda

did not raise this issue in his objections to the PSR or during

his sentencing hearing, review is for plain error. See United

States v. Scrivner, 114 F.3d 964, 966 (9th Cir. 1997) (applying plain error where defendants did not object to the PSR or

during their sentencing hearing.). 

15278 UNITED STATES v. LABRADA-BUSTAMANTE
[14] Before a sentence may be enhanced under 21 U.S.C.

§ 841(b) for a prior drug conviction, the government must file

an information in compliance with 21 U.S.C. § 851(a).9“The

statute merely ensures proper notice so a defendant is able to

challenge the information . . . .” United States v. Severino,

316 F.3d 939, 943 (9th Cir. 2003) (en banc) (citation and

internal quotation marks omitted). The statute’s purpose of

providing notice is satisfied “[i]f the defendant, reading the

information in context, will have no trouble understanding

which prior conviction the prosecutor means to identify . . . .”

Id. at 943-44. 

[15] The government filed the required information in this

case, identifying the 1997 felony drug conviction used to

enhance Baranda’s sentence. Baranda obviously had no trouble recognizing the conviction because it was the only one

alleged, and he challenged it on the basis that his plea colloquy was constitutionally deficient. Therefore, he “could not

have been confused about the prior conviction[,]” and section

851(a) was satisfied. Id. at 944. 

Baranda also raises a constitutional challenge to 21 U.S.C.

§ 851(e) under the equal protection and due process clauses

of the Fifth Amendment. However, we have previously considered and rejected this very argument. See United States v.

Davis, 36 F.3d 1424, 1438-39 (9th Cir. 1994) (rejecting the

claim that section 851(e) violates due process or equal protection.). 

9Section 851(a) provides, in relevant part: 

No person who stands convicted of an offense under this part

shall be sentenced to increased punishment by reason of one or

more prior convictions, unless before trial, or before entry of a

plea of guilty, the United States attorney files an information with

the court . . . stating in writing the previous convictions to be

relied upon . . . . 

21 U.S.C. § 851(a). 

UNITED STATES v. LABRADA-BUSTAMANTE 15279
Finally, Baranda maintains that imposition of the twentyyear mandatory minimum sentence violates the Eighth

Amendment because such a sentence would not reflect an

individualized assessment of his culpability. “We review de

novo the constitutionality of a sentence.” United States v.

Barajas-Avalos, 377 F.3d 1040, 1060 (9th Cir. 2004) (citation

omitted). 

[16] “[F]ederal courts should be reluctant to review legislatively mandated terms of imprisonment because the fixing of

prison terms for specific crimes is properly within the province of legislatures, not courts.” Id. (citations, alteration, and

internal quotation marks omitted). For this reason,

“[m]andatory minimum sentencing schemes have been consistently upheld against constitutional challenge,” United

States v. Wilkins, 911 F.2d 337, 339 (9th Cir. 1990) (citing

cases), and “outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Barajas-Avalos, 377 F.3d

at 1060 (citation and alteration omitted). 

[17] In this case, the imposition of the twenty-year mandatory minimum sentence would not be cruel and unusual for a

defendant who, like Baranda, has been convicted of a serious

drug crime and has a prior felony drug conviction. See id. at

1060-61 (upholding a 360-month sentence for a defendant

convicted of attempting to manufacture and manufacturing

methamphetamine and who had only a prior misdemeanor

conviction). 

[18] We conclude that the district court erred in allowing

Baranda to collaterally attack his prior conviction, and we

therefore vacate his sentence and remand to the district court

for re-sentencing consistent with this opinion. 

III

CONCLUSION

The district court correctly denied Labrada and Duarte’s

motion to suppress because both defendants knowingly and

15280 UNITED STATES v. LABRADA-BUSTAMANTE
intelligently waived their Miranda rights and the waivers

were voluntary. There was sufficient evidence for a rational

jury to find, beyond a reasonable doubt, that Labrada intended

to distribute fifty grams or more of meth. Labrada did not

receive ineffective assistance of counsel, as the court accepted

and considered counsel’s oral objections. Because of the district court’s clear indication that it felt constrained by the

Guidelines, and because the district court impermissibly permitted Baranda to collaterally attack his 1997 conviction, we

vacate the sentences imposed so that the defendants can be resentenced under the now-advisory Guidelines. 

CONVICTIONS AFFIRMED; SENTENCES

VACATED and REMANDED for re-sentencing. 

UNITED STATES v. LABRADA-BUSTAMANTE 15281