United States of America v. Andrew Munoz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW MUNOZ,
Defendant-Appellant.
No. 19-30132
D.C. No. 1:18-cr-00095-EJL-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted October 6, 2021
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Andrew Munoz appeals his conviction and sentence on one count of
conspiracy to distribute methamphetamine and heroin, one count of distributing
heroin, and one count of distributing methamphetamine and heroin in violation of
FILED
OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), and (b)(1)(C). We have jurisdiction under
28 U.S.C. § 1291 and we affirm.
Following conviction after a jury trial, the district court sentenced Munoz to
140 months in federal prison. Munoz argues that the district court erred in (1)
providing the jury with a deliberate ignorance instruction, (2) applying a two-level
gun possession sentence enhancement, and (3) failing to grant a downward
sentencing variance in light of the disparity in sentencing ranges for actual
methamphetamine versus methamphetamine mixture.
A deliberate ignorance instruction is appropriate when the district court
concludes that “the jury could rationally find willful blindness even though it has
rejected the government’s evidence of actual knowledge.” United States v.
Heredia, 483 F.3d 913, 922 (9th Cir. 2007) (en banc). A strong showing of actual
knowledge does not preclude the district court from also providing a deliberate
ignorance instruction. Id. at 922–23. Throughout Munoz’s trial, the defense
repeatedly emphasized that there was no evidence that he had ever looked at the
contents of the packages he delivered to the undercover officer. The purpose of
this argument was to persuade the jury that Munoz did not know what he was
delivering. Because the jury could have found that he was aware the packages
likely contained drugs and deliberately avoided learning of their contents, we hold
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the court acted within its discretion in giving the jury the deliberate ignorance
instruction.
Section 2D1.1(b)(1) of the U.S. Sentencing Guidelines instructs sentencing
courts that “[i]f a dangerous weapon (including a firearm) was possessed, increase
[the base offense level] by 2 levels,” unless “it is clearly improbable that the
weapon was connected with the offense.” USSG § 2D1.1, Commentary n.11.
Here, the jury convicted Munoz of participating in a conspiracy to distribute
methamphetamine and heroin lasting from 2017 through March 16, 2018. Munoz
was arrested on March 14, 2018, while the conspiracy was ongoing. According to
trial testimony, Munoz had two guns physically on him when he was arrested, and
another two guns were present with him in the vehicle. Therefore, the district court
did not err in concluding that Munoz possessed a dangerous weapon during the
commission of a drug offense.
At sentencing, Munoz asked the district court to use a reduced base offense
level on the ground that purity testing of the methamphetamine resulted in an
unwarranted sentencing disparity. We hold that the court did not err in using the
higher base offense level.
AFFIRMED.
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