United States Court of Appeals

for the Fifth Circuit

No. 19-30236

United States of America, 

Plaintiff—Appellee,

versus

Roy Martin Herrera Romero; Oscar Arturo MachadoGaleana, also known as Sinaloan, 

Defendants—Appellants.

Appeals from the United States District Court

for the Middle District of Louisiana

USDC No. 3:15-CR-32-7

USDC No. 3:15-CR-32-1

Before Graves, Costa, and Engelhardt, Circuit Judges.

Per Curiam:*

Defendant-Appellants Roy Martin Herrera Romero and Oscar Arturo 

Machado-Galeana appeal their convictions for drug trafficking charges. They 

contend that the district court erred in denying their motions to suppress 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 26, 2020

Lyle W. Cayce

Clerk

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wiretap evidence because the wiretap in this case was unnecessary and the 

Government listened in on too many non-pertinent communications, 

rendering the wiretap unlawful under 18 U.S.C. § 2518. Machado-Galeana

also appeals his 300-month sentence. We affirm.

I. Background

After a nine-day jury trial, Herrera Romero was convicted of 

possession of marijuana with intent to distribute. The same jury convicted 

Machado-Galeana of several offenses: conspiracy to possess with intent to 

distribute 50 grams or more of methamphetamine, less than 100 grams of 

heroin, and marijuana; conspiracy to launder monetary instruments; 

distribution of 50 grams or more of methamphetamine (four counts); 

possession with intent to distribute 50 grams or more of methamphetamine 

and marijuana; and possession of firearms in furtherance of a drug trafficking 

crime. Herrera Romero was sentenced to a 60-month term of imprisonment.

Machado-Galeana was sentenced to serve 300 months: 240-month 

concurrent sentences for all counts save the firearms count, for which 

Machado-Galeana received a 60-month consecutive sentence. 

The law enforcement investigation in this matter began on June 18, 

2014, when a confidential informant alerted local police that Alexander Pined 

Nava was engaged in a methamphetamine trafficking operation in Baton 

Rouge, Louisiana. Shortly thereafter, law enforcement conducted several 

undercover purchases of substantial quantities of methamphetamine from 

Nava. Toll records from Nava’s phone showed that he typically contacted 

Machado-Galeana around the time of the controlled purchases. Law 

enforcement continued conducting controlled purchases, each in escalating 

quantities, as well as physical surveillance of Nava’s home. During one of the 

controlled purchases, Nava told undercover officers that a Mexican cartel

supplied the methamphetamine, and that the methamphetamine was 

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smuggled across the Mexican border using military connections. Nava also 

said that he and his associates got their marijuana from California. After some 

of the controlled purchases, Nava’s associates would follow the undercover 

officers, hampering law enforcement’s ability to surveil Nava’s activities. 

Although the investigation revealed substantial evidence of drug 

trafficking by Nava, Herrera Romero and Machado-Galeana, the United 

States applied for a Title III wiretap order on Nava’s cellphone in November 

2014. According to the supporting affidavit, various traditional investigative 

techniques had revealed “the key members of the NAVA organization,” but 

the Government was at a dead-end in determining an apparent conspiracy’s 

scope and suppliers. The affidavit set out the investigative methods that law 

enforcement used, including: a cooperating source, controlled purchases, 

physical surveillance, pole cameras, undercover agents, consensually 

recorded phone calls, administrative subpoenas, telephone subscriber 

records, DMV records, police records, a search warrant, a GPS tracker, toll 

records, pen register/trap and trace data, a traffic stop used to identify a 

possible coconspirator, and screening the suspects’ social media activity. 

The affidavit went on to assert that law enforcement had exhausted these 

methods, and that a wiretap on Nava’s phone was needed to glean the 

trafficking operation’s scope, structure, and suppliers. The district court 

signed the wiretap order for Nava’s phone. 

The Government later applied for and received a wiretap order for

Machado-Galeana’s phone; it submitted an application and a supporting 

affidavit similar to those used in the Nava wiretap application. Later, the 

district court granted a 30-day extension on the Machado-Galeana wiretap. 

Before trial, Herrera Romero and Machado-Galeana moved to 

suppress evidence obtained via the wiretaps. Pointing to the substantial 

evidence that law enforcement obtained before the wiretaps, Herrera 

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Romero and Machado-Galeana contended that because the Government had 

not met 18 U.S.C. § 2518(3)(c)’s necessity requirement, the wiretaps were

unlawful. After holding a hearing, the district court denied the motions to 

suppress, concluding that the Government had established the wiretaps’ 

necessity. 

The Government used two Spanish-speaking persons, Maria Reyes 

and Ricardo Robles, to monitor the intercepted telephone calls. Both 

monitors worked for private companies on contract with the Government. At 

a hearing on the United States’ motion to authenticate the voices heard on 

the intercepted phone calls, a DEA agent testified that the monitors would 

“listen to the calls and determine if they are pertinent or non-pertinent.” 

The monitors would also “make a synopsis, which is a . . . short description 

of the conversation.” During Reyes’ cross-examination at the authentication 

hearing, the following exchange occurred:

Q. As I understand the process today, you and Mr. Robles were 

each assigned shifts to listen to the incoming calls and text 

messages on these wiretaps, correct?

A. That’s correct.

Q. And I’m trying to gather here that on your shift you would 

be responsible for listening to every call that came in, correct?

A. That’s correct.

Q. And you would listen to the calls in their entirety, correct?

A. Correct.

Robles testified that he did not translate every call into English; instead he 

would “translate the calls that are pertinent and that are requested by the 

agent or the attorney.” However, he did a synopsis, in English, for every call, 

and he contemporaneously entered notes during some calls. Agents then read

the synopses and decided which calls needed to be transcribed. Robles said

that a law enforcement agent was always with him while he worked. Neither 

Reyes nor Robles was specifically asked about minimization of non-pertinent 

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calls. The four fifteen-day reports that the Government submitted for the 

district court’s review provide that the percentage of “calls minimized out of 

the total number of calls completed” ranged from 0.99% to 2.61%, but that 

most of the calls were under two minutes long. Of all calls longer than two 

minutes, minimization rates ranged from 3.5% to just under 14%. 

After the authentication hearing, Herrera Romero, citing the 

monitors’ testimony, moved again to suppress all wiretap evidence, arguing 

that the Government’s minimization practices violated 18 U.S.C. § 2518(5). 

Machado-Galeana did not raise any argument regarding minimization. The 

district court denied Herrera Romero’s motion, concluding that the 

Government’s minimization practices were reasonable under the 

circumstances. 

Much of the evidence presented at trial against Machado-Galeana

consisted of witnesses reading aloud from transcripts of intercepted 

communications or identified speakers in recorded phone calls. Additionally, 

Nava testified that Machado-Galeana was the operation’s leader. On October 

4, 2018, a jury convicted Machado-Galeana of six counts of drug trafficking, 

one count of money laundering, and one count of possession of a firearm in 

furtherance of a drug trafficking crime. The same jury convicted Herrera 

Romero on one count of marijuana trafficking. 

At sentencing, the district court concluded by a preponderance of the 

evidence that Machado-Galeana sent Nava’s family threatening messages 

and had asked other inmates to kill Nava to prevent Nava from testifying. 

The district court also concluded that Machado-Galeana perjured himself at 

trial by asserting that Nava was the conspiracy’s leader and that Nava 

coerced Machado-Galeana into committing the crimes of which he was 

charged. The district court then concluded that Machado-Galeana’s total 

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offense level was 44,1 which included a 2-level obstruction-of-justice 

enhancement for Machado-Galeana’s false testimony. The guidelines 

imprisonment range for Machado-Galeana’s offense level, along with a 

criminal history category of I, is life imprisonment. See U.S.S.G. Ch.5, Pt. A., 

Sentencing Table. Machado-Galeana, citing his lack of criminal history, 

requested a downward variance but did not request a specific sentence. The 

district court sentenced Machado-Galeana to 300 months’ imprisonment, 

well below the guidelines range. 

On appeal, Herrera Romero and Machado-Galeana both challenge the 

district court’s decision that the Government satisfied 18 U.S.C. § 2518 with 

respect to the wiretap’s necessity and minimization. Machado-Galeana also 

contends that the district court erred by applying the obstruction-of-justice 

enhancement, and that his 300-month sentence is substantively 

unreasonable. 

II. The Wiretap’s Necessity

Both Herrera Romero and Machado-Galeana contend that the district 

court erroneously concluded that the Government established the wiretaps’

necessity. They contend that the wiretaps were unnecessary because 

substantial evidence against them was obtained, or could have been obtained, 

through traditional investigative techniques. We review a district court’s 

authorization of a wiretap for clear error. United States v. Kelley, 140 F.3d 596, 

604 (5th Cir. 1998); United States v. Butler, 477 F. App’x 217, 219 (5th Cir. 

2012). We review de novo whether the Government satisfied the necessity 

requirement. United States v. Smith, 273 F.3d 629, 632 (5th Cir. 2001); Butler, 

477 F. App’x at 219. 

1 The district court treated Machado-Galeana’s total offense level as 43 pursuant 

to U.S.S.G. Ch. 5, Pt. A., Application Note 2. 

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Title III of the Omnibus Crime Control and Safe Streets Act of 1968 

generally prohibits law enforcement agents from intercepting wire, oral, and 

electronic communications without consent, absent prior judicial approval. 

18 U.S.C. §§ 2510-2520; United States v. Smith, 978 F.2d 171, 173, 175 (5th 

Cir. 1992). Among other requirements, an application seeking a wiretap order

must establish that “other investigative procedures have been tried and failed 

or why they reasonably appear to be unlikely to succeed if tried or to be too 

dangerous.” 18 U.S.C. § 2518(1)(c). To issue an order approving 

interception of wire communications, a judge must find that the Government 

has made the required showing of necessity. 18 U.S.C. § 2518(3)(c). This 

“necessity requirement,” Kelley, 140 F.3d at 605, is meant to ensure that 

wiretaps are not “routinely employed as the initial step in criminal 

investigation.” United States v. Giordano, 416 U.S. 505, 515 (1974).

In its affidavits seeking a wiretap authorization, the Government 

demonstrated that a wiretap was necessary to determine an apparent drugtrafficking conspiracy’s scope and suppliers. Regarding traditional 

investigative techniques, the affidavits provided “[d]etails about the use of 

each technique” concerning the subjects of the investigation, “the success 

or failure of the technique, and what the technique has accomplished or failed 

to accomplish with regard to the goals and objectives of this investigation.” 

The affidavits summarized the Government’s use of confidential sources, 

controlled purchases, physical surveillance, undercover agents, search 

warrants, trash searches, a “GPS tracker,” closed circuit television cameras, 

pen registers, trap and trace devices, “[t]oll [a]nalysis and [s]ubscriber 

[i]nformation,” and “[m]ail [c]over [r]equests.” 

Herrera Romero and Machado-Galeana contend that, because these 

traditional methods yielded abundant evidence of their own crimes, wiretap 

surveillance was unnecessary. These arguments misunderstand the wiretap’s 

objective. The affidavits explained that the Government had exhausted the 

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extent to which these methods could expose the conspiracy’s scope, and, 

based on an apparent connection to a Mexican drug cartel and a marijuana 

supplier in California, as well as the organization’s counter-surveillance 

efforts, continuing these more traditional methods would be futile and 

dangerous. Cf. United States v. Webster, 734 F.2d 1048, 1054-55 (5th Cir. 

1984) (affirming a wiretap’s necessity because extensive, traditional 

investigative methods would not further reveal a trafficking organization’s 

scope).

Herrera Romero and Machado-Galeana also argue that other, less 

intrusive investigative methods could have revealed the information sought 

by the Government. However, the necessity requirement is not meant to 

“foreclose electronic surveillance until every other imaginable method of 

investigation has been unsuccessfully attempted.” Webster, 734 F.2d at 1055. 

Thus, the Government does not have to show that it has exhausted every 

conceivable option before a wiretap may be approved. Kelley, 140 F.3d at 605. 

Instead, § 2518(c) requires a showing that “normal investigative techniques 

employing a normal amount of resources have failed to make the case within 

a reasonable period of time.” Id. (internal quotation marks and citation 

omitted). Because the wiretap affidavits sufficiently established that 

traditional investigative methods were at a dead-end, and that a wiretap was 

necessary to glean an apparently sophisticated conspiracy’s scope and 

suppliers, the district court did not err in concluding that the Government 

satisfied § 2518’s necessity requirement. 

III. The Government’s Minimization Practices

Herrera Romero and Machado-Galeana also argue that the district 

court should have suppressed all wiretap evidence because the Government 

and the monitorslistened in on too many irrelevant conversations. We review 

the district court’s “determination of the reasonableness of minimization 

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efforts for clear error.” United States v. Brown, 303 F.3d 582, 603 (5th Cir. 

2002). Under the clear error standard, we review the evidence in the light 

most favorable to the prevailing party. United States v. Pack, 612 F.3d 341, 347 

(5th Cir. 2010). So long as a factual finding is plausible based on the record 

as a whole, it is not clearly erroneous. See United States v. Raney, 633 F.3d 

385, 389 (5th Cir. 2011).

Although Herrera Romero raised the Government’s minimization 

before the district court, Machado-Galeana did not; he challenges

minimization for the first time on appeal. We have held that the “failure to 

raise specific issues or arguments in pre-trial suppression proceedings operates 

as a waiver of those issues or arguments for appeal.” United States v. 

Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (emphasis in original). However, 

we may, “for good measure,” consider the argument under the plain error 

standard. Id.; see United States v. Baker, 538 F.3d 324, 328-29 & n.1 (5th Cir. 

2008). Under either standard, Herrera Romero and Machado-Galeana’s 

arguments are unavailing because neither identifies specific conversations 

that should have been suppressed, and because the Government’s 

minimization efforts, while perhaps lax, were not wholly unreasonable. 

Herrera Romero and Machado-Galeana’s failure to identify specific, 

excludable evidence is fatal to their claim because this court has rejected total

suppression for minimization violations. See United States v. Gaytan, 74 F.3d 

545, 554 (5th Cir. 1996) (“The exclusionary rule does not require the 

exclusion of those conversations that were properly intercepted as well.”).2 

2 In United States v. Hyde, 574 F.2d 856 (5th Cir. 1978), this court stated, but did 

not hold, that “blatant disregard[]” of minimization requirements may merit total 

suppression. 574 F.2d at 869. The primary argument for total suppression is that piecemeal 

suppression of non-pertinent calls neither benefits the defendant nor deters the 

Government’s minimization violations—the Government is unlikely to introduce 

irrelevant communications, and post hoc suppression of improperly intercepted calls places 

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But even if Herrera Romero and Machado-Galeana had identified specific 

communications to be suppressed, the district court did not clearly err. 

Section 2518(5) requires that wiretap surveillance “be conducted in such a 

way as to minimize the interception of communications not otherwise subject 

to interception[.]” 18 U.S.C. § 2518(5). To comply with § 2518(5), the 

“government’s efforts to minimize interception of non-pertinent 

conversations must be objectively reasonable in light of the circumstances 

confronting the interceptor.” Brown, 303 F.3d at 604 (internal quotation 

marks and citation omitted). In keeping with this reasonableness standard 

and its variance with each case’s facts, the Supreme Court has cautioned that 

“blind reliance on the percentage of nonpertinent calls intercepted is not a 

sure guide to the correct answer.” Scott v. United States, 436 U.S. 128, 140

(1978). We consider three factors in determining the objective 

reasonableness of the Government’s minimization practices: “‘(1) the nature 

and scope of the criminal enterprise under investigation; (2) the 

Government’s reasonable inferences of the character of a conversation from 

the parties to it; and (3) the extent of judicial supervision.’” Brown, 303 F.3d 

at 604 (quoting United States v. Bankston, 182 F.3d 296, 307 (5th Cir. 1999)). 

Here, the defendant-appellants agree that “there was judicial supervision in 

law enforcement in the same position as if it had properly minimized in the first place. 

However, total suppression could render wiretap investigations ineffective by requiring law 

enforcement to erroneously minimize coded, seemingly innocent calls out of fear that 

mistakenly listening could jeopardize the entire wiretap. For this reason, courts almost

uniformly have declined complete suppression as a remedy for minimization abuses unless 

the defendant can show that the abuses tainted the investigation as a whole. E.g., United 

States v. Cox, 462 F.2d 1293, 1301 (8th Cir. 1972) (“Clearly Congress did not intend that 

evidence directly within the ambit of a lawful order should be suppressed because the 

officers, while awaiting incriminating evidence, also gathered extraneous conversations. If 

appellants have a remedy under Title III other than the suppression of conversations 

outside the warrant’s scope, it lies in . . . a civil suit against the investigating officers.”). See 

also United States v. Mansoori, 304 F.3d 635, 648 (7th Cir. 2002); United States v. Charles, 

213 F.3d 10, 22 (1st Cir. 2000); United States v. Ozar, 50 F.3d 1440, 1448 (8th Cir. 1995).

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this case and agents seemingly anticipated a scheme substantially larger in 

scope than the one indicted.” 

Regarding the second factor—the extent to which Government can 

readily make reasonable inferences of conversation’s character and 

participants—this court has recognized that the reasonableness of the 

Government’s minimization rates will vary with each case’s facts. This court 

generally has afforded deference to law enforcement “during the initial phase 

of an investigation, when the precise scope of and participants in the criminal 

scheme have not yet been identified.” Brown, 303 F.3d at 604-05. Law 

enforcement is also unlikely able to quickly identify non-pertinent 

communications where the conspiracy uses coded or foreign languages. See

United States v. Clark, 67 F.3d 1154, 1162 (5th Cir. 1995), cert. granted, 

judgment vacated on other grounds sub nom. Coffman v. United States, 519 U.S. 

802 (1996); United States v. Sanchez, 961 F.2d 1169, 1178-79 (5th Cir. 1992) 

(“Where drug jargon is used over the phone, the government may engage in 

more extensive wiretapping and the interception of innocent calls may be a 

more reasonable activity.”). Finally, minimization may not be feasible when 

most intercepted calls are under two minutes, because law enforcement may 

not have enough time to categorize a call in real time before the call 

terminates. See Scott, 436 U.S. at 140 (“[T]here are surely cases . . . where 

the percentage of nonpertinent calls is relatively high and yet their 

interception was still reasonable . . . [because] [m]any of the nonpertinent 

calls may have been very short. Others may have been one-time only calls . . . 

[or] ambiguous in nature.”). When these indicia are present, low 

minimization rates may not be indicative of § 2518(5) violations.

Each of these indicia is present here. The district court noted that, 

through controlled methamphetamine purchases, law enforcement 

suspected that Herrera Romero and Machado-Galeana were members of a 

large and sophisticated conspiracy with connections to a Mexican drug cartel, 

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but the investigation was only months old, rendering distinguishing pertinent 

from non-pertinent calls difficult. Further, the intercepted communications 

were in Spanish and used “coded jargon,” making it difficult for case agents 

to give real-time instructions to monitors regarding pertinence. Last, most of

the intercepted calls were less than two minutes long and so not subject to 

quick categorization before the calls’ termination. The intercepted calls in 

this case thus generally were not readily minimizable, and so the district court 

did not clearly err in concluding that the Government’s minimization efforts 

were reasonable.

IV. Machado-Galeana’s 300-Month Sentence

Machado-Galeana also contests his 300-month sentence. He argues 

first that the district court erred in imposing a 2-level obstruction-of-justice 

enhancement, and second that his 300-month sentence is substantively 

unreasonable. We address both arguments in turn.

A defendant’s guidelines offense level is increased by two if he or she 

“willfully obstructed or impeded, or attempted to obstruct or impede, the 

administration of justice with respect to the investigation, prosecution, or 

sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. A district 

court’s determination that a defendant obstructed justice is a finding of fact 

that we review for clear error. United States v. Zamora-Salazar, 860 F.3d 826, 

836 (5th Cir. 2017). Applying the preponderance-of-the-evidence standard, 

the district court concluded that Machado-Galeana repeatedly perjured 

himself at trial when he testified in his defense. Machado-Galeana contends 

that the enhancement’s application to his offense level is unconstitutional 

because it penalizes him for testifying in his own defense. This argument 

misses the mark because “a defendant’s right to testify does not include a 

right to commit perjury.” United States v. Dunnigan, 507 U.S. 87, 96 (1993). 

Moreover, other grounds support the enhancement’s application. See United 

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States v. Dunigan, 555 F.3d 501, 508 n.12 (5th Cir.) (citation omitted), cert. 

denied, 556 U.S. 1264 (2009). (“[I]t is an elementary proposition, and the 

supporting cases too numerous to cite, that this court may affirm the district 

court’s judgment on any grounds supported by the record.”). The district 

court adopted the presentence investigation report’s conclusion that 

Machado-Galeana sought to dissuade Nava’s testimony by asking other 

inmates to kill Nava and by sending threatening messages to Nava’s mother, 

and these actions also support the § 3C1.1 enhancement. See U.S.S.G. 

§ 3C1.1 & Application Note 4(a). 

Machado-Galeana also contends that the district court violated his 

Sixth Amendment rights by using the preponderance-of-the-evidence 

standard in applying an enhancement that exposed him to a potential life 

sentence. However, this court, along with other courts of appeals, has 

consistently affirmed the preponderance standard’s application to 

sentencing enhancements. See, e.g., United States v. Hagman, 740 F.3d 1044, 

1048 (5th Cir. 2014); United States v. Gourley, 168 F.3d 165, 171 n.10 (5th Cir. 

1999). Further, the 2-level enhancement here did not significantly impact 

Machado-Galeana’s sentence, because his 300-month sentence is below the 

guidelines imprisonment range even absent the enhancement. See U.S.S.G. 

Ch. 5, Pt. A., Sentencing Table (recommending a range of 360 months to life 

imprisonment for an offense level of 42). The enhancement’s application 

thus does not implicate the constitutional concerns that Machado-Galeana 

raises. 

Last, Machado-Galeana argues that his 300-month sentence is 

substantively unreasonable because he had no criminal history before the 

instant offense. Our review of the district court’s sentencing decision is 

limited to determining whether the sentence is reasonable. Gall v. United 

States, 552 U.S. 38, 46 (2007). We typically review a sentence’s substantive 

reasonableness for abuse of discretion, giving great deference to the district 

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court’s findings and conclusions. See Gall, 552 U.S. at 51; United States v. 

Key, 599 F.3d 469, 475 (5th Cir. 2010). While Machado-Galeana requested a 

below-guidelines sentence, he did not request a specific sentence and so may 

not have preserved this issue. See Holguin-Hernandez v. United States, 140 S. 

Ct. 766-67 (2020) (concluding that that a “defendant who, by advocating for 

a particular sentence, communicates to the trial judge his view that a longer 

sentence is ‘greater than necessary’ has thereby informed the court of the 

legal error at issue in an appellate challenge to the substantive reasonableness 

of the sentence” (emphasis added)).

Whether plain error or abuse-of-discretion review applies, MachadoGaleana’s challenge fails. A properly calculated sentence that is within or 

below the guidelines range is presumed substantively reasonable on appeal. 

United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015); United States v. 

Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To overcome the presumption of 

reasonableness, Machado-Galeana must show that the district court failed to 

consider a factor specified by 18 U.S.C. § 3553(a) that should have received 

significant weight, or that the district court attributed significant weight to an 

improper consideration. Cooks, 589 F.3d at 186. Machado-Galeana notes that 

he has no criminal history, but the district court expressly considered his lack 

of a criminal history and, in any case, his sentence falls below the applicable 

guidelines range for his offense level and criminal history category. MachadoGaleana also asserts that the district court “did not adequately consider the 

impact on Mr. Machado’s family and his personal characteristics in imposing 

the sentence,” but Machado-Galeana does not identify what the district 

court should have considered, and so cannot overcome the presumption of 

reasonableness. 

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VI. Conclusion

The district court did not err in concluding that the wiretaps in this

case were necessary and that the Government’s minimization practices did 

not warrant total suppression. The district court did not clearly err in 

applying a 2-level obstruction-of-justice enhancement, and MachadoGaleana has not overcome the presumption his below-guidelines sentence is 

substantively reasonable. Accordingly, the judgment of the district court is 

AFFIRMED.

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