FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 05-50550

D.C. No. JUAN EMANUEL LOCOCO, a/k/a JOHN 

LOCOC CR-03-00687-RGK- ; JUAN EMANUEL LOCOC;

JOVANNI JOHN LOCOCO; JUAN DE LA 02

ROSA LOCOC; JUAN LOCOCO,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v. No. 05-50552

D.C. No. JUAN EMANUEL LOCOCO, a/k/a JOHN 

LOCOC CR-03-00689-RGK- ; JUAN EMANUEL LOCOC;

JOVANNI JOHN LOCOCO; JUAN DE LA 02

ROSA LOCOC; JUAN LOCOCO,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-50590

v. D.C. No. 

CR-03-00689-RGK- JOHN D. EDWARDS, JR., a/k/a Seal

A; Cabbage; Junior, 1

Defendant-Appellant. 

1337
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

CHARLOTTE VENIA JACKSON, a/k/a

CHARLOTTE RENE JACKSON,

CHARLETTE TINA JACKSON,

CHARLOTTE VENDA JACKSON, TINA No. 05-50721 JACKSON, NICJNEY HONES,

CHARLOTTE D.C. No. VENRA JACKSON, 

RENADA CR-03-00687-RGK- JOHNSON, CHARLOTTE VENA

JACKSON, RICKNEY HONES, NICKEY 03

JONES, RENADA CARLETTE JOHNSON,

RENADA C. JACKSON, RENADA

CARLOTTE JOHNSON, RENADA

CHARLOTTE JOHNSON, CHARLOTTE

VENIA JACKSON, NIGKNEY JOHNES;

TINA FLY,

Defendant-Appellant. 

1338 UNITED STATES v. LOCOCO
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

CHARLOTTE VENIA JACKSON, a/k/a

CHARLOTTE RENE JACKSON,

CHARLETTE TINA JACKSON, No. 05-50722

CHARLOTTE VENDA JACKSON, TINA D.C. No.

JACKSON, NICKNEY JONES, CR-03-00689-RGKCHARLOTTE VENRA JACKSON,  03

RENADA JOHNSON, CHARLOTTE VENA ORDER AND JACKSON, RICKNEY JONES, NICKEY AMENDED JONES, RENADA CARLETTE JOHNSON,

OPINION RENADA C. JACKSON, RENADA

CARLOTTE JOHNSON, RENADA

CHARLOTTE JOHNSON, CHARLOTTE

VENIA JACKSON, NIGKNEY JOHNES;

TINA FLY,

Defendant-Appellant. 

Appeals from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted

October 19, 2007—Pasadena, California

Filed December 27, 2007

Amended January 28, 2008

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima

and M. Margaret McKeown, Circuit Judges.

Per Curiam Opinion

UNITED STATES v. LOCOCO 1339
COUNSEL

Gretchen Fusilier, Carlsbad, California, for defendantappellant Juan Emanuel Lococo. 

Alissa Sawano Peterson, Irvine, California, for defendantappellant John D. Edwards, Jr. 

Philip Deitch, Van Nuys, California, for defendant-appellant

Charlotte Venia Jackson. 

Jennifer A. Corbet, Kevin S. Rosenberg and Thomas P.

O’Brien, Assistant U.S. Attorneys; George S. Cardona, Acting U.S. Attorney, Los Angeles, California, for plaintiffappellee. 

ORDER

The opinion filed December 27, 2007 is ordered amended.

The following paragraph, which appears on page 16760 of the

slip opinion, is deleted: 

Though Lococo denied knowing that his coconspirators converted the powder cocaine he sold

them into crack cocaine, he admitted that he joined

a conspiracy to distribute crack. The district court

therefore didn’t violate the Sixth Amendment when

it sentenced him based on the crack his coconspirators distributed. See United States v. Mercado Irizarry, 404 F.3d 497, 504 (1st Cir. 2005)

1342 UNITED STATES v. LOCOCO
(“[T]he maximum statutory penalty available to the

district court at sentencing for a defendant convicted

of a drug conspiracy is based on the drug quantity

and amount . . . attributable to the conspiracy as a

whole.”). 

In its place, the following paragraphs are inserted: 

The district court sentenced Lococo under 21

U.S.C. § 841(b)(1)(B) based on the amount of crack

“involved” in the conspiracy, but didn’t find that

Lococo knew or could reasonably have foreseen that

the conspiracy involved crack. This was error. We

have held that section 841(b)’s enhancement can

only be based on the type and quantity of drugs that

“either (1) fell within the scope of the defendant’s

agreement with his coconspirators or (2) [were] reasonably foreseeable to the defendant.” United States

v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003).

Though at least one other circuit disagrees with our

interpretation of this statute, United States v. Mercado Irizarry, 404 F.3d 497, 503-04 (1st Cir. 2005),

we are bound by Banuelos. 

Lococo didn’t admit that he knew or could reasonably foresee that the conspiracy involved crack

cocaine. Quite the contrary, he repeatedly denied it.1

So even if the district court had made the findings

required by Banuelos, those findings would have

violated Apprendi v. New Jersey, 530 U.S. 466

1Though Lococo’s plea agreement admits he joined a conspiracy to distribute crack, Lococo also struck language from that agreement that would

have admitted knowledge that his conspirators converted the powder he

sold them into crack. The agreement is therefore ambiguous, but we construe ambiguities in favor of defendants. United States v. Franco-Lopez,

312 F.3d 984, 989 (9th Cir. 2002). Lococo reasonably believed that he

wasn’t admitting to have agreed to, or to have reasonably foreseen, the

conspiracy’s involvement with crack. See id.

UNITED STATES v. LOCOCO 1343
(2000), by exposing Lococo to a higher statutory

maximum based on facts he never admitted. United

States v. Thomas, 355 F.3d 1191, 1201 (9th Cir.

2004). Lococo preserved his claim of Apprendi error

by raising the objection in his sentencing memorandum. 

Lococo does admit he knew about the conspiracy’s involvement with powder cocaine, and the government claims there is evidence of enough powder

cocaine to justify the section 841(b)(1)(B) enhancement and render the Apprendi error harmless.2

 But

the district court hasn’t yet made findings as to the

amount of powder cocaine involved in the conspiracy, so we cannot tell whether the government is

correct. We therefore vacate Lococo’s sentence and

remand for re-sentencing. On remand, the district

court may only base a section 841(b)(1)(B) enhancement on the quantity of powder cocaine involved in

the conspiracy—because it is only powder cocaine

that Lococo admits he knew about. See Banuelos,

322 F.3d at 704. 

The final line on page 16760 of the slip opinion is amended

to read: 

DISMISSED in part, AFFIRMED in part,

VACATED in part and REMANDED in part.

The filing of this order starts anew the running of deadlines

for filing any petition for rehearing or petition for rehearing

en banc. 

2Lococo’s statements at sentencing could be interpreted as an admission

that he knew of the conspiracy’s involvement with crack, but we do not

consider any such admission in assessing whether the Apprendi error was

harmless. United States v. Nordby, 225 F.3d 1053, 1061 n.6 (9th Cir.

2000), overruled on other grounds by United States v. Buckland, 277 F.3d

1173, 1182 (9th Cir. 2002) (en banc). 

1344 UNITED STATES v. LOCOCO
OPINION

PER CURIAM: 

Defendants pled guilty to conspiring to possess and distribute cocaine. We consider the government’s application for the

wiretap on which its case was built, an allegation of prosecutorial misconduct and the constitutionality of defendants’ sentences. 

[1] 1. The wiretap application describes the investigative

techniques the police tried and explains how they failed: Confidential informants were either incarcerated, unwilling to testify or else distrusted by the targets; efforts to recruit other

informants failed; and attempts to gather evidence by other

means—including direct and hidden surveillance, trash

searches and searches of paroled gang members’ homes—

yielded nothing. Defendants haven’t shown any basis to doubt

the application’s representations. “Law enforcement officials

need not exhaust every conceivable investigative technique

before seeking a wiretap order.” United States v. Staves, 383

F.3d 977, 982 (9th Cir. 2004). The district court didn’t abuse

its discretion in finding that the application justified the wiretap. 

[2] 2. Defendants haven’t shown that the wiretap application contained false statements or material omissions, so

there was no need for a hearing under Franks v. Delaware,

438 U.S. 154 (1978). The claim that Special Agent King

reviewed Jackson’s calls since March 2002 isn’t demonstrably false; though the police’s pen register authority only

began in July of that year, King also had Jackson’s telephone

toll records, which may have reached back to March. Nor did

the application understate informant CS-1’s closeness to Jackson; on the contrary, it acknowledged that CS-1 could buy

drugs from her. 

Though the application didn’t mention that Jackson was in

the Blood Stone Villains gang, that didn’t matter; the point

UNITED STATES v. LOCOCO 1345
was that Jackson’s boyfriend was in the target Pueblo Street

Bishops gang. Nor was there any reason for the application to

mention Lococo or the sources close to him, as he wasn’t the

wiretap’s target. 

[3] 3. Defendants haven’t shown that the government’s

failure to produce its recordings of Lococo’s phone calls prejudiced anyone’s defense or affected anyone’s decision to

plead guilty. See United States v. Tucker, 8 F.3d 673, 675 (9th

Cir. 1993). The district court didn’t abuse its discretion by not

dismissing the indictment. 

[4] 4. In his plea colloquy, Lococo waived his right to

have a jury determine the amount of drugs the conspiracy

sold. There was no need for the district court to advise him

of this right at sentencing. 

[5] Lococo’s plea agreement reserved the government’s

right to “supplement the facts stipulated” and to “seek any

sentence within the statutory maximum,” so offering additional evidence at sentencing didn’t breach the agreement. 

[6] The district court sentenced Lococo under 21 U.S.C.

§ 841(b)(1)(B) based on the amount of crack “involved” in

the conspiracy, but didn’t find that Lococo knew or could reasonably have foreseen that the conspiracy involved crack.

This was error. We have held that section 841(b)’s enhancement can only be based on the type and quantity of drugs that

“either (1) fell within the scope of the defendant’s agreement

with his coconspirators or (2) [were] reasonably foreseeable

to the defendant.” United States v. Banuelos, 322 F.3d 700,

704 (9th Cir. 2003). Though at least one other circuit disagrees with our interpretation of this statute, United States v.

Mercado Irizarry, 404 F.3d 497, 503-04 (1st Cir. 2005), we

are bound by Banuelos. 

Lococo didn’t admit that he knew or could reasonably foresee that the conspiracy involved crack cocaine. Quite the con1346 UNITED STATES v. LOCOCO
trary, he repeatedly denied it.1

 So even if the district court had

made the findings required by Banuelos, those findings would

have violated Apprendi v. New Jersey, 530 U.S. 466 (2000),

by exposing Lococo to a higher statutory maximum based on

facts he never admitted. United States v. Thomas, 355 F.3d

1191, 1201 (9th Cir. 2004). Lococo preserved his claim of

Apprendi error by raising the objection in his sentencing

memorandum. 

[7] Lococo does admit he knew about the conspiracy’s

involvement with powder cocaine, and the government claims

there is evidence of enough powder cocaine to justify the section 841(b)(1)(B) enhancement and render the Apprendi error

harmless.2 But the district court hasn’t yet made findings as

to the amount of powder cocaine involved in the conspiracy,

so we cannot tell whether the government is correct. We

therefore vacate Lococo’s sentence and remand for resentencing. On remand, the district court may only base a section 841(b)(1)(B) enhancement on the quantity of powder

cocaine involved in the conspiracy—because it is only powder cocaine that Lococo admits he knew about. See Banuelos,

322 F.3d at 704. 

[8] 5. Edwards admitted that he joined a conspiracy to

1Though Lococo’s plea agreement admits he joined a conspiracy to distribute crack, Lococo also struck language from that agreement that would

have admitted knowledge that his conspirators converted the powder he

sold them into crack. The agreement is therefore ambiguous, but we construe ambiguities in favor of defendants. United States v. Franco-Lopez,

312 F.3d 984, 989 (9th Cir. 2002). Lococo reasonably believed that he

wasn’t admitting to have agreed to, or to have reasonably foreseen, the

conspiracy’s involvement with crack. See id.

2Lococo’s statements at sentencing could be interpreted as an admission

that he knew of the conspiracy’s involvement with crack, but we do not

consider any such admission in assessing whether the Apprendi error was

harmless. United States v. Nordby, 225 F.3d 1053, 1061 n.6 (9th Cir.

2000), overruled on other grounds by United States v. Buckland, 277 F.3d

1173, 1182 (9th Cir. 2002) (en banc). 

UNITED STATES v. LOCOCO 1347
distribute over 50 grams of crack cocaine and that he had a

prior drug felony trafficking conviction. Because those admissions suffice to support a sentence of life in prison, see 21

U.S.C. § 841(b)(1), the additional facts the court found at sentencing didn’t increase the maximum sentence for which he

was eligible. The court’s fact-finding therefore did not violate

Apprendi v. New Jersey, 530 U.S. 466 (2000). 

[9] 6. In their plea agreements, Lococo and Edwards

waived the right to appeal their sentences. Edwards claims his

waiver wasn’t valid, but his plea colloquy shows he waived

the right knowingly and voluntarily. These waivers bar defendants from appealing the district court’s interpretation of the

Guidelines, its calculation of the Guidelines range, its alleged

failure to consider the sentencing factors in 18 U.S.C.

§ 3553(a), and the reasonableness of the sentences imposed.

We therefore dismiss these portions of defendants’ appeals. 

DISMISSED in part, AFFIRMED in part, VACATED

in part and REMANDED in part.

1348 UNITED STATES v. LOCOCO