United States v. Rivera

Full title: UNITED STATES of America, Plaintiff--Appellee, v. Moises RIVERA…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 1, 2005

137 F. App'x 994 (9th Cir. 2005)

Opinion

Submitted August 11, 2004. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Christina Hua, Office of the U.S. Attorney, San Francisco, CA, for Plaintiff-Appellee.

Nina Wilder, Esq., Weinberg & Wilder, San Francisco, CA, Erik G. Babcock, Esq., Law Office of Erick G. Babcock, Oakland, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. CR-01-00419-CRB-02, CR-01-00419-1-CRB.

Before: PREGERSON, KOZINSKI and HAWKINS, Circuit Judges.

AMENDED MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1. The district court did not err in denying defendants' motion to dismiss for violation of the Speedy Trial Act, 18 U.S.C. § 3161(b). See United States v. Gastelum-Almeida, 298 F.3d 1167, 1173 (9th Cir.2002) (citing United States v. Heldt, 745 F.2d 1275, 1279-80 (9th Cir.1984)).

2. The district court's response to the jury's questions was not an abuse of discretion. See United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th Cir.2000).

3. Nor did the district court err in denying defendant Rivera an entrapment instruction. See United States v. Becerra, 992 F.2d 960, 963 (9th Cir.1993). Rivera did not present even "slight evidence ... that [he] was initially unwilling to commit the crime, or that Government involvement planted the criminal design in [his] mind." See United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.1982).

4. The defendants' request to file a supplemental brief addressing the effect of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on their sentences is denied. Consistent with United States v. Ameline, 409 F.3d 1073, 2005 WL 1291977, at *11 (9th Cir.2005) (en banc), we "remand to the district court ... for the [limited] purpose of ascertaining whether the sentence[s] imposed would have been materially different had the district court known that the sentencing guidelines were advisory." Id. at 1074.

AFFIRMED IN PART; REMANDED IN PART.