Opinion
No. 06-30106.
Submitted February 6, 2007 Portland, Oregon.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
February 22, 2007.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding. D.C. No. CR-04-30050-AA.
Before: D.W. NELSON, KLEINFELD, and BYBEE, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The facts and procedural posture of the case are known to the parties, and we do not repeat them here. Gonzalo Hernandez-Vega ("Appellant") makes several challenges to his conviction and sentence. We address each in turn.
First, Appellant asserts that the district court erred in admitting evidence of Appellant's prior felony drug conviction and of Appellant's prior drug deal with the informant in the present case under Federal Rule of Evidence 404(b). We find that because the evidence (1) was sufficiently supported, (2) involved conduct that was not overly remote, (3) presented conduct that was similar to the charged conduct, and (4) tended to prove a material element of the crime, and because the evidence was not unduly prejudicial, the district court did not abuse its discretion in admitting this evidence. See United States v. Arambula-Ruiz, 987 F.2d 599, 602-04 (9th Cir. 1993).
Second, Appellant argues that the district court erred in excluding evidence of Appellant's potential penalty and of the informant's likely penalty from jury consideration. However, because "the jury ha[s] no sentencing function and should reach its verdict without regard to what sentence might be imposed," Rogers v. United States, 422 U.S. 35, 40 (1975), we reject Appellant's argument that he was denied his Sixth Amendment right to a fair trial when the proffered sentencing evidence was not put before the jury. In addition, it was not an abuse of discretion for the district court to exclude this evidence. See United States v. Leon-Reyes, 177 F.3d 816, 819 (9th Cir. 1999).
Third, Appellant asserts that the district court undermined defense counsel's credibility so as to deprive Appellant of his Sixth Amendment right to effective assistance of counsel. But Appellant notes no deficiency on counsel's part to meet the requirements of Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant also fails to demonstrate that the exchange at issue — where the district court sustained an evidentiary objection made by the prosecution — caused prejudice comparable to that in Lau Lee v. United States, 67 F.2d 156, 159 (9th Cir. 1933).
Fourth, Appellant asserts that, because of an ambiguity that resulted from the prosecution's closing argument, the district court should have sentenced Appellant under 21 U.S.C. § 841(b)(1)(B)(viii) rather than 21 U.S.C. § 841(b)(1)(A)(viii). However, given that the jury found Appellant guilty of violating 21 U.S.C. § 841(b)(1)(A)(viii), the district court did not err by sentencing Appellant in accordance with that statute.
Accordingly, we AFFIRM Appellant's conviction and sentence.