United States v. Dalia Ildefonso ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50390
Plaintiff-Appellee, D.C. No.
3:16-cr-00679-LAB-1
v.
DALIA MARINA ILDEFONSO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted March 5, 2018
Pasadena, California
Before: REINHARDT and NGUYEN, Circuit Judges, and SETTLE,** District
Judge.
1. The government did not commit misconduct in closing argument. It properly
stated and addressed the required elements of conspiracy and then described the
circumstantial evidence that supported conviction. See United States v. Kojayan, 8
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
F.3d 1315, 1321 (9th Cir. 1993) (“When a prosecutor asks jurors to deduce a
defendant’s guilt from circumstantial evidence, for example, he’s urging them to
take a leap beyond the record, to use their common sense in reaching a conclusion
not explicitly spelled out by the evidence. This is the very essence of jury
summation.”).
2. The district court did not plainly err by using the preponderance standard to
determine the amount of methamphetamine attributable to Ildefonso at sentencing.
We agree with Ildefonso that the reasoning in United States v. Harrison-Philpot,
978 F.2d 1520 (9th Cir. 1992), is inapposite to her case. However, because of our
precedent, United States v. Flores, 725 F.3d 1028, 1035 (9th Cir. 2013) (citing
United States v. Rosacker, 314 F.3d 422, 429-30 (9th Cir. 2002) (holding the clear
and convincing standard that applies to cases where a sentencing factor has an
extremely disproportionate effect on the sentence does not apply to drug quantity
approximations)), we cannot conclude that any error is “so clear-cut, so obvious,
[that] a competent district judge should be able to avoid it without benefit of
objection,” United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007).
AFFIRMED.
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