FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50336

Plaintiff-Appellee, D.C. No.

v.  2:08-cr-01359-

M JHN-1 IGUEL ANGEL VASQUEZ,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Jacqueline H. Nguyen, District Judge, Presiding

Argued and Submitted

July 14, 2011—Pasadena, California

Filed August 15, 2011

Before: Pamela Ann Rymer, Richard C. Tallman, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Rymer

10835
COUNSEL

Martha M. Hall, San Diego, California, for the defendantappellant.

Asha M. Olivas, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee. 

OPINION

RYMER, Circuit Judge:

Miguel Vasquez was found guilty after a bench trial of

being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g). On appeal, he challenges his

conviction and sentence. We have jurisdiction under 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.

10838 UNITED STATES v. VASQUEZ
I

On October 17, 2008, the government sought and obtained

a warrant to search the home of Miguel Vasquez and seize

evidence of violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. § 1962. The

affidavit accompanying the search warrant was common to

the search of 121 residences of members of the Mongols

Motorcycle Club, a motorcycle gang engaged in racketeering

activity, including murder, drug trafficking, robberies, hate

crimes, and theft of motorcycles.

According to the affidavit, at the top of the Mongols organization was the “Mother Chapter,” which directed the activities of the local chapters. Officers, specifically the president,

vice-president, secretary/treasurer, and sergeant-at-arms, led

the local chapters. The affiant noted that “the Mongols are

different from many other criminal enterprises in that they

keep extensive written documentation of their rules and activities.” These documents, including minutes of meetings and

financial records, often reflected criminal activity. Officers

typically maintained these documents in a secure location

such as their residences.

The affidavit names Vasquez in three places. Vasquez’s

residence is included in a table of the residences to be

searched. The last column of the table, titled “Probable cause

section discussed below” lists “records custodian” for

Vasquez. The records custodian section states that “this affidavit is made in support of warrants to search for and seize

the evidence of violations of [RICO],” and lists various qualifying predicate acts under RICO. It then lists the persons to

be searched under this section, including Vasquez, and the

items to be seized at their residences, including “[a]ll notes or

minutes of meetings conducted by the Mongols.”

Finally, Vasquez is named in a list of officers of Mongols

chapters. Under the heading “Hemet Chapter” is the entry

UNITED STATES v. VASQUEZ 10839
“Miguel Vasquez — President.” The affidavit also notes that

the summary of the Mongols officers is based on information

provided by undercover agents and confidential informants.

On October 21, agents executed the warrant. An agent

searched the garage. He located sweat pants on the top shelf

of a metal shelving unit situated on the west side of the

garage. After retrieving the sweat pants, the agent took out

socks from each of the pockets. An unloaded firearm (a

Beretta) was inside one sock. The other sock contained two

loaded magazines that fit the Baretta. The second shelf of the

unit contained a stereo, a digital camera, and some photos.

The photos were of Mongols and some included Vasquez. At

the end of the shelving unit, the agent located a t-shirt, which

was printed with the name “Miggy,” a known alias of

Vasquez.

The north wall of the garage contained another metal shelving unit. From the top shelf, the agent retrieved a black canvas

bag. Inside the black bag was a Cobray Mac-11 firearm and

several hundred rounds of ammunition. None of the ammunition fit the Mac-11. A black cooler airbrushed with Mongols

insignias lay next to this shelving unit. It was unlocked and

inside were Hemet Chapter bylaws, a member phone list, and

photographs of prospective Mongols members.

Vasquez was indicted on one count of being a felon in possession of a firearm or ammunition. In the following months,

the parties litigated a motion to suppress. Vasquez argued

there was insufficient probable cause in the search warrant

particularized to him and also sought a Franks1 hearing

because, as he alleged, the affidavit falsely stated that he was

president of the Hemet Chapter. The district court held any

falsity was immaterial because if Vasquez was the treasurer,

instead of the president, there was still probable cause to

search his home. The court also held that there was “probable

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

10840 UNITED STATES v. VASQUEZ
cause aplenty” in the search warrant and denied the motion to

suppress. When the case was transferred to Judge Nguyen,

Vasquez filed a motion to reconsider, which was denied.

Judge Nguyen held that even deleting from the affidavit the

statement that Vasquez was president, he was still an officer

and probable cause remained.

At the bench trial, the agent who conducted the search,

along with Vasquez’s wife, sister, and boss, testified. He was

found guilty. The Pre-Sentence Report (PSR) calculated a

base offense level of 22 and a criminal history category of III

for a Sentencing Guidelines range of 51-63 months. The PSR

recommended a sentence of 36 months because his criminal

history was overstated. His felony convictions were from

1992, when he was 18, and he had been an almost model citizen since then. At the sentencing hearing, the judge agreed

with the PSR and reduced his criminal history category to II,

which represented a Guidelines range of 46-57 months. She

then imposed a sentence of 36 months. Vasquez now appeals.

II

Vasquez challenges his conviction on two grounds: the adequacy of the search warrant and the sufficiency of the evidence. Neither challenge is persuasive.

A

Vasquez argues that evidence of the guns and ammunition

should have been suppressed because the warrant was invalid.

We hold that based on the affidavit accompanying the warrant, the magistrate judge had a substantial basis for concluding there was a fair probability that evidence of a crime would

be found in Vasquez’s home. See United States v. Collins,

427 F.3d 688, 691 (9th Cir. 2005); United States v. ChavezMiranda, 306 F.3d 973, 978 (9th Cir. 2002). The stated basis

for the search was that Vasquez was the president of a Mongols chapter. The chapter presidents maintained organizaUNITED STATES v. VASQUEZ 10841
tional records in their homes, including minutes of meetings.

Such records documented the illegal activities of the Mongols. The affidavit provided support for each of these assertions.

[1] There was probable cause to believe Vasquez was president of the Hemet Chapter. Cf. United States v. Chesher, 678

F.2d 1353, 1362 (9th Cir. 1982). The affidavit notes that

undercover agents and confidential informants collected

phone lists and rosters. They also became officers and

attended all-officer and all-member meetings. At these meetings, they were able to observe those who were officers.

While there is nothing specific in the affidavit about how any

of these informants learned that Vasquez was an officer, the

magistrate judge could have reasonably inferred that the

knowledge was obtained through attendance at meetings or

the lists collected. See Chavez-Miranda, 306 F.3d at 978

(court must give “due weight to inferences drawn from [the]

facts by resident judges and local law enforcement officers”

(internal quotation marks omitted)). Notably, Vasquez does

not challenge the reliability or credibility of any informant or

that their hearsay was insufficiently corroborated. Cf. United

States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006).

[2] Next, the magistrate judge properly concluded that

notes would be found in Vasquez’s home. Vasquez is incorrect to insist that there be direct evidence that he was seen taking or possessing notes, because the magistrate judge may

make reasonable inferences. United States v. Dubrofsky, 581

F.2d 208, 213 (9th Cir. 1978). The informants, who were

members or leaders of various Mongols chapters, observed

others maintaining notes of activities or themselves participated in keeping notes. The only inference necessary is that

Vasquez was likely to maintain similar notes as part of his

leadership of the Hemet Chapter. This inference is especially

reasonable given the evidence that the Mongols leaders

adhered to organizational rules that required presidents to

maintain club documents, including minutes.

10842 UNITED STATES v. VASQUEZ
Lastly, the affidavit provides sufficient probable cause to

believe the records would contain evidence of a crime. In

United States v. Rubio, 727 F.2d 786, 795 (9th Cir. 1983), as

amended, this court reversed convictions of members of the

Hells Angels Club because the warrants failed to support

probable cause as to the nexus requirement. The search warrants sought indicia of membership at the houses of alleged

members. These indicia of membership, though, contained no

evidence of criminal activity, unless the entire enterprise was

wholly illegitimate, which the Hells Angels Club was not. Id.

at 793.

[3] The warrant here served a different purpose. It sought

club documents not for their indication of membership in the

Mongols but because these documents detailed illegal activity. The affidavit described how the Mongols organization

conducted its affairs through prohibited racketeering activity,

including engaging in transactions of narcotics and firearms.

The Mongols kept notes and minutes of their meetings in

which they discussed illegal activity. Thus, the magistrate

judge had a substantial basis for concluding that the documentation, maintained at the residences of officers, would contain

evidence of criminal activity.

[4] Vasquez also attacks the warrant as an unconstitutional

general warrant. See United States v. Bridges, 344 F.3d 1010,

1015-16 (9th Cir. 2003). The prohibition of “general warrants” imposes a particularity limitation, requiring warrants to

specify the items to be seized and the locations to be searched.

United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990).

It prevents general, exploratory searches. Id.; Chesher, 678

F.2d at 1359-60 (noting that the “issue of probable cause must

be distinguished from [ ] the issue of the warrant’s possible

unconstitutionality as a general warrant” but declining to

reach the latter issue).

[5] In determining whether a description is sufficiently

precise, we have focused on:

UNITED STATES v. VASQUEZ 10843
(1) whether probable cause exists to seize all items

of a particular type described in the warrant, (2)

whether the warrant sets out objective standards by

which executing officers can differentiate items subject to seizure from those which are not, and (3)

whether the government was able to describe the

items more particularly in light of the information

available to it at the time the warrant was issued.

United States v. Stubbs, 873 F.2d 210, 211 (9th Cir. 1989)

(internal quotation and alterations omitted). We have

described the probable cause to seize Mongols documents,

including the minutes of meetings. There is no indication that

the government was able to describe these minutes in any

more detail prior to the search. The government here did not

seek to seize all documents or even all meeting notes but

rather only Mongols documents, including notes of Mongols

meetings. Cf. VonderAhe v. Howland, 508 F.2d 364, 370 (9th

Cir. 1974) (unconstitutional for warrant to authorize “a massive re-examination of all records” where “government knew

exactly what it needed and wanted”); United States v. SDI

Future Health, Inc., 568 F.3d 684, 704-05 (9th Cir. 2009)

(portion of search warrant authorizing the search for “Documents relating to non-privileged internal memoranda and Email” invalid when the government’s interest limited to communications related to sleep studies).

[6] In United States v. Apker, 705 F.2d 293 (8th Cir. 1983),

modified on other grounds sub nom. United States v. Fitzgerald, 724 F.2d 633 (8th Cir. 1983) (en banc), the Eighth Circuit

struck down portions of a search warrant issued against Hells

Angels Club members for failing to satisfy the particularity

requirement. See id. at 299-303. The warrant sought “to

obtain evidence of just one fact—membership in the Hells

Angels.” Id. at 302. Here, the warrant sought minutes of meetings not to show membership in the Mongols but because

these documents contained evidence of criminal activity.

Apker, then, is inapposite, and we conclude the warrant

10844 UNITED STATES v. VASQUEZ
described the documents to be seized with sufficient particularity.

Vasquez’s last challenge to the warrant is that the district

court erred in denying him a hearing to establish that the affidavit falsified material information. See Franks v. Delaware,

438 U.S. 154 (1978). The district court held that even if the

affiant recklessly listed Vasquez as the president, it was

immaterial because Vasquez’s undisputed status as an officer

provided sufficient probable cause to search his home. See id.

at 171-72.

[7] Assuming the statement that Vasquez was president

was false, we must purge it and determine whether what is left

justifies issuance of the warrant. Ewing v. City of Stockton,

588 F.3d 1218, 1224 (9th Cir. 2009). We may not consider

evidence outside the affidavit. Baldwin v. Placer Cnty., 418

F.3d 966, 971 (9th Cir. 2005). Vasquez argues the entire statement “Miguel Vasquez — President” must be struck, resulting in no evidence to support the search of his home. We do

not read the affidavit in such a technical manner. See Illinois

v. Gates, 462 U.S. 213, 235-36 (1983). 

[8] The statement summarizes the assertion that Vasquez

was an officer of the Mongols, namely, the president. After

striking out the fact that he was the president, we are left only

with the fact that he was an officer. We must ask whether his

status as an officer would have justified issuance of the warrant. It would. According to the affidavit, officers other than

the president also maintained records, in their homes, that

documented illegal activity. Regardless of Vasquez’s title, his

status as an officer allows the search of his home. Any falsity,

then, about his status as the president was immaterial.

Because the warrant was valid, we need not consider

whether the officers acted in good faith in relying on it. See

United States v. Leon, 468 U.S. 897, 920 (1984).

UNITED STATES v. VASQUEZ 10845
B

[9] Vasquez next challenges his conviction for a lack of

sufficient evidence. The government was required to show

beyond a reasonable doubt that he constructively possessed

the firearms. 18 U.S.C. § 922(g)(1); United States v. Tucker,

641 F.3d 1110, 1118-19 (9th Cir. 2011). “To prove constructive possession, the government must prove a sufficient connection between the defendant and the contraband to support

the inference that the defendant exercised dominion and control over the firearms.” United States v. Carrasco, 257 F.3d

1045, 1049 (9th Cir. 2001) (internal quotation marks omitted).

“Dominion and control” means Vasquez had knowledge of

the weapons and the power and intent to exercise control over

them. United States v. Terry, 911 F.2d 272, 278 (9th Cir.

1990). The government may show such knowledge and intent

through circumstantial evidence. United States v. Thongsy,

577 F.3d 1036, 1041 (9th Cir. 2009).

[10] The guns were found in Vasquez’s garage. In close

proximity, including on the same or nearby shelves, were

located many items belonging to Vasquez. These included

several photographs of Vasquez, and in some of them he was

wearing Mongols paraphernalia. There were also other Mongols items on the shelves, which his sister admitted belonged

to him. Finally, there were t-shirts in the area that belonged

to him. One t-shirt was labeled “Miggy,” which was his nickname. T-shirts found in his bedroom closet resembled the tshirts in the garage. Overall, there was sufficient evidence for

a trier of fact to conclude that Vasquez constructively possessed the firearms. See Terry, 911 F.2d at 278 (constructive

possession where gun found in closet shared by defendant and

wife surrounded by his clothes and men’s boots); Tucker, 641

F.3d at 1119 (constructive possession of gun where defendant

was sole occupant of bedroom and only user of its closet).

Vasquez’s argument that there was no evidence he owned

or had touched the firearms or that anyone had ever seen him

10846 UNITED STATES v. VASQUEZ
with the firearms is unavailing. The government did not need

to show ownership or actual possession. Similarly, we are not

required to believe his assertion that he was simply allowing

someone else to store the weapons in his garage and did not

intend to exercise control over them. United States v. Nevils,

598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (noting we

must view the facts in a light most favorable to the prosecution).

III

[11] Vasquez argues his sentence was substantively unreasonable. According to him, the district judge should have

imposed a lower sentence because he has been a productive

member of society, he had good motives in storing the weapons, and the higher sentence resulted in unwarranted disparities. We hold the judge did not abuse her discretion in

imposing a sentence significantly below the Guidelines range.

Cf. United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir.

2010) (noting a sentence within the Guidelines range probably

is reasonable).

As to his being a productive member of society, Vasquez

seems to be rearguing his leniency plea. See id. (noting court

unlikely to reverse a sentence when a defendant simply “reargues his leniency plea from district court”). The judge considered Vasquez’s positive characteristics, reduced his criminal

history category from III to II, and then sentenced him below

the Guidelines range. She was not required to do more.

The judge concluded that even if she accepted Vasquez’s

version of the events evincing his good motives, the seriousness of his offense—storing two firearms and hundreds of

rounds of ammunition after being convicted of two felonies—

trumped it. The judge did not act unreasonably in emphasizing the seriousness of the offense. See United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc) (noting we may

UNITED STATES v. VASQUEZ 10847
not reverse simply because we would have imposed a different sentence).

[12] Vasquez’s final argument is that his sentence resulted

in unwarranted disparities because several Mongols who were

eventually prosecuted for RICO violations were given lower

sentences. Specifically, according to him, thirty-three defendants received lower sentences and twenty-two higher. Seventeen defendants received probation, which is the sentence

Vasquez sought. Even if these disparities are assumed to be

unwarranted, this factor alone would not result in an unreasonable sentence. The need to avoid unwarranted sentences is

only one factor the judge must consider. United States v.

Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006). Here,

the judge “exercised sound discretion” to ensure the punishment fit the crime by weighing the seriousness of the offense

with all the mitigating factors and sentencing Vasquez to a

significantly below-Guidelines term of imprisonment. See id.

The sentence was reasonable.

AFFIRMED.

10848 UNITED STATES v. VASQUEZ