United States of America v. Rudy Espudo

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUDY ESPUDO,
Defendant-Appellant.
No. 17-55643
D.C. Nos. 3:16-cv-01433-GPC
3:12-cr-00236-GPC-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MIGUEL GRADO, AKA Kathy, AKA
Kieto,
Defendant-Appellant.
No. 17-55644
D.C. Nos. 3:16-cv-00738-GPC
3:12-cr-00236-GPC-4
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted March 6, 2019
Pasadena, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 6 --

2
Before: KLEINFELD, GILMAN,** and NGUYEN, Circuit Judges.
Rudy Espudo and Miguel Grado appeal from the district court’s denial of
their motions to vacate, set aside, or correct their sentences under 28 U.S.C.
§ 2255. The defendants each pleaded guilty to, among other things, one count of
violating 18 U.S.C. § 924(c) for brandishing a firearm (as to Espudo) and
discharging a firearm (as to Grado) in relation to a crime of violence (a conspiracy
under RICO, the Racketeer Influenced and Corrupt Organizations Act) and a
drug-trafficking crime (a conspiracy to distribute controlled substances).
In their § 2255 motions, the defendants asked that the court vacate and
correct their sentences under § 924(c)(1). Specifically, they argued that they were
sentenced pursuant to the residual clause in § 924(c)(3)’s definition of a “crime of
violence,” which they claimed to be unconstitutionally vague in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).
The district court denied their motions, holding that because the defendants’
§ 924(c) convictions were predicated on both a crime of violence and a drug-
trafficking crime, they would have necessarily been subject to the mandatory
enhanced sentence under § 924(c) notwithstanding Johnson.
** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

-- 2 of 6 --

3
I. Plea Colloquies
As the district court explained, if the defendants’ § 924(c) convictions were
predicated on both a RICO conspiracy and a conspiracy to distribute controlled
substances, then they are not eligible for Johnson relief. The defendants, however,
contend that their § 924(c) convictions rested solely on acts involving a crime of
violence and that neither defendant admitted to facts supporting a conviction of
brandishing or discharging a firearm in relation to a drug-trafficking crime during
their plea colloquies.
Their argument is contradicted by the record. During Espudo’s plea
colloquy, he admitted that (1) he entered into an agreement to participate in the
activities of the Mexican Mafia, a gang that controls drug distribution within
certain penal institutions; (2) he was a senior member of the Mafia and oversaw its
collection of tax money from other gangs; (3) he agreed to distribute either 500
grams or more of a mixture containing methamphetamine, or 50 grams of actual
methamphetamine, and a portion of the proceeds were provided to him in the form
of tax payments; (4) on November 16, 2011, he directed his associates to rob a
drug dealer who failed to pay tax money on behalf of the Mafia; and (5) although
he was not present for the robbery, it was foreseeable that one of his associates
brandishing a shotgun at the drug dealer. Espudo’s § 924(c) conviction was
therefore based on both a crime of violence and a drug-trafficking crime.

-- 3 of 6 --

4
In similar fashion, Grado admitted during his plea colloquy that (1) he was a
member of the Diablos Gang, which operated under the umbrella of the Mexican
Mafia, and that he acted as a “shot-caller” who oversaw the collection of tax
money; (2) he collected tax payments by intimidation, force, or threat of force from
various drug dealers who operated within the Diablos Gang’s territory; (3) he sold
approximately 13.8 grams of methamphetamine, and distributed, possessed with
the intent to distribute, or conspired with other gang members to distribute
methamphetamine or cocaine; (4) he demanded a meeting with a local drug dealer
after that dealer shorted Grado’s coconspirator on the amount of methamphetamine
to be delivered; and (5) even though the drug dealer ultimately provided Grado’s
coconspirator with the shorted methamphetamine, Grado went to the dealer’s
residence and either shot him or aided and abetted his coconspirator in shooting
him. Grado’s § 924(c) conviction was therefore similarly based on both a crime of
violence and a drug-trafficking crime.
II. Claim of Duplicitous Counts
The defendants also contend on appeal that a § 924(c) conviction cannot be
predicated on both a crime of violence and a drug-trafficking crime because it
would create an impermissibly duplicitous indictment. They rely on In re Gomez,
830 F.3d 1225, 1227 (11th Cir. 2016), in which the Eleventh Circuit held that the
defendant had made a prima facie showing for purposes of 28 U.S.C.

-- 4 of 6 --

5
§ 2244(b)(3)(C), that his conviction, based on a single count, might have
implicated § 924(c)’s residual clause and Johnson. In Gomez, the defendant was
charged in a single count of violating § 924(c), referencing two drug-trafficking
offenses and an attempted Hobbs Act robbery on the same day, as well as an
ongoing conspiracy to commit Hobbs Act robbery spanning two weeks as potential
predicates. Because the defendant might have “carried and possessed” the firearm
during any of these separate underlying offenses (and not others), the Eleventh
Circuit was left guessing as to which predicate the jury relied on for the § 924(c)
conviction.
But Gomez is inapposite. In the present case, the defendants were each
charged with violating § 924(c) for brandishing or discharging a firearm on only
one occasion. The defendants just happened to commit two separate predicate
offenses while brandishing or discharging that firearm—a RICO conspiracy that
was inextricably intertwined with a conspiracy to distribute controlled substances.
Nor is this a situation in which the defendants were charged with multiple
§ 924(c) offenses for “using the same firearm one time to simultaneously further
two different conspiracies.” See United States v. Vichitvongsa, 819 F.3d 260, 266
(6th Cir. 2016) (emphases in original) (holding that the defendant who used a
firearm while simultaneously committing two predicate offenses could not be
convicted on two § 924(c) counts). Here, the defendants were each charged with

-- 5 of 6 --

6
only one count of violating § 924(c). The defendants’ § 924(c) convictions were
therefore legally permissible.
III. Other Issues
Because the defendants’ § 924(c) convictions were based in part on
drug-trafficking crimes, they are not entitled to Johnson relief. We thus have no
need to decide whether the residual clause in § 924(c)(3)’s definition of a crime of
violence is unconstitutionally vague. Nor do we address whether the defendants’
Johnson argument is procedurally defaulted for failing to raise the issue on direct
appeal or is waived by their guilty pleas.
AFFIRMED.

-- 6 of 6 --