United States v. Romero
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 27, 2026
Docket24-1702
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 24-1702
D.C. No.
Plaintiff - Appellee, 2:17-cr-00278-ODW-1
v.
MEMORANDUM*
JOSE BALMORE ROMERO, AKA Porky,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued and Submitted September 16, 2026
Pasadena, California
Before: R. NELSON and DESAI, Circuit Judges, and SCHREIER, District
Judge.**
Defendant-Appellant Jose Romero appeals two issues from his jury trial and
subsequent conviction on two counts: conspiracy to participate in a racketeering
enterprise in violation of 18 U.S.C. § 1962(d) and conspiracy to distribute or to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
possess with intent to distribute controlled substances in violation of 21 U.S.C.
§ 846. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Romero argues that the district court abdicated its gatekeeping obligations
concerning expert testimony when it adopted the government’s proposed order on
Agent Call’s qualifications and reliability without independently determining
whether Agent Call’s opinions were reliable before qualifying him as an expert.
While the district court must make an explicit reliability finding on the record,
Daubert hearings are not required: “The district court’s gatekeeping can be
performed through numerous procedures—such as motion in limine briefing and
oral argument, voir dire, and cross-examination at trial.” United States v. Holguin,
51 F.4th 841, 852–53 (9th Cir. 2022); United States v. Alatorre, 222 F.3d 1098,
1101–05 (9th Cir. 2000).
Agent Call possessed extensive law enforcement experience and a history of
casework concerning MS-13, which formed a “reliable basis for [his] expert
testimony regarding gang structure and activities.” Holguin, 51 F.4th at 856. The
expert issues were disclosed, briefed, and argued at a pre-trial conference. See id. at
853 (“[I]t will often be beneficial for district courts to conduct some proceeding,
focused on the reliability of expert testimony . . . .”). The district court then made
an explicit reliability finding on the record when it adopted the government’s
proposed order. Moreover, Agent Call’s testimony was not “inherently unreliable,”
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and Romero had “the opportunity to rebut and cross-examine.” Id. at 869 n.1
(Berzon, J., concurring in part) (quoting United States v. Reed, 575 F.3d 900, 923 &
n.17 (9th Cir. 2009)). Therefore, the district court did not abuse its discretion in
admitting Agent Call’s expert testimony.
Romero further contends that the order was conclusory and that, by adopting
the government’s proposed order and reading it to the jury, the district court
impermissibly vouched for Agent Call. See United States v. Ruiz, 710 F.3d 1077,
1085 (9th Cir. 2013). While the district court should have made its reliability finding
outside the jury’s presence, any potential error was harmless because the record
supports the reliability of Agent Call’s testimony and the district court twice
instructed the jurors on their ability to accept or reject the witness’s testimony—both
before Agent Call testified on direct, and before his cross-examination. See Holguin,
51 F.4th at 855–57; Zafiro v. United States, 506 U.S. 534, 540–41 (1993) (juries are
presumed to follow instructions).
2. Romero next argues that the district court plainly erred by calculating the
amount of drugs distributed by his co-conspirator, Melgar, and by attributing that
amount of drugs to Romero when calculating Romero’s offense level under the
Sentencing Guidelines. Because Romero did not object to the amount of drugs
attributed to him at sentencing, his claims are reviewed for plain error. United States
v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009).
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As the government established, the drugs trafficked by Melgar were also
reasonably foreseeable to Romero. The government elicited testimony at trial that
making money is a primary goal of the MS-13 enterprise, that its revenue is
generated predominately through narcotics trafficking, and that Romero occupied a
leadership role in MS-13. The government also demonstrated that, despite being
composed of different cliques, MS-13 operated in a coordinated fashion through
general meetings of clique leaders and pooled profits from narcotics trafficking.
Both Romero and Melgar were convicted beyond a reasonable doubt of conspiracy
to distribute or to possess with intent to distribute methamphetamine, and Melgar
was also convicted of actual distribution of methamphetamine. A witness testified
that he collected rent from Melgar multiple times and delivered it to Romero, further
linking Melgar to Romero.
And the jury found that Romero knew the racketeering conspiracy would
involve drug trafficking, and that it was reasonably foreseeable that the conspiracy
would involve methamphetamine. See United States v. Perez, 962 F.3d 420, 448–
49 (9th Cir. 2020). The district court therefore had sufficient grounds to conclude
that methamphetamine distribution was within the scope of Romero and Melgar’s
“jointly undertaken criminal activity.” U.S. Sent’g Guidelines Manual
§§ 1B1.3(a)(1)(B)(i), 1B1.3 cmt. n.4(C)(vi) (U.S. Sent’g Comm’n 2025).
The district court’s approximation of the quantity of methamphetamine
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contributing to Romero’s offense level was proper because the estimate was
supported by a preponderance of the evidence, the supporting information possessed
“sufficient indicia of reliability,” and the numbers used in the calculation were
conservative. United States v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002). To
calculate the drug quantity under the guidelines, the district court used the
established multiplier method and leveraged a credible witness’s testimony about
the amount of methamphetamine Melgar had provided to the witness each week over
an estimated period of sixteen weeks. Id. This estimate was conservative and within
the range of time supplied by the witness. Therefore, the district court did not plainly
err in calculating Romero’s offense level.
AFFIRMED.
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