United States v. Jose Marquez ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-50479
Plaintiff - Appellee, D.C. No. 3:08-cr-02019-L-1
v.
MEMORANDUM*
JOSE ALBERTO MARQUEZ, AKA Bat,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted July 8, 2014
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Jose Alberto Marquez challenges his conviction for conspiracy to distribute
50 grams or more of methamphetamine and for aiding and abetting possession with
intent to distribute 50 grams or more of methamphetamine. He also appeals the
concurrent life sentences imposed for the crimes, which were mandatory due to his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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prior felony drug convictions. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The district court did not abuse its discretion in refusing to grant a
continuance because the trial had begun, multiple continuances had already been
granted, and there was no indication that defense counsel was unprepared. See
United States v. Thompson, 587 F.3d 1165, 1173–75 (9th Cir. 2009).
Marquez argues that the district court should have assigned him a new lawyer
after he complained about his attorney on the first day of trial and through multiple
letters to the court. For starters, we reject the Government’s suggestion that the
Local Rules prohibited the judge from considering such letters. The rules
preventing ex parte communications were not designed to prevent a prisoner from
expressing concerns about his counsel to the court. Upon receiving the letters, the
court should have notified counsel for both sides and conducted an inquiry into
Marquez’s allegations. Nonetheless, the court’s failure to provide substitute
counsel was not an abuse of discretion or plain error. Marquez never explicitly
requested a new lawyer, but even if his complaints are construed as a motion for
substitute counsel, the request was properly denied given that the trial was
underway, Marquez was given the opportunity to be heard, and the court
determined that defense counsel was competent and well-qualified to handle the
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case. See United States v. Prime, 431 F.3d 1147, 1154–56 (9th Cir. 2005). Further,
Marquez fails to point to anything in the record suggesting that counsel did not
effectively represent him.
Reviewing the issue de novo, see United States v. Bennett, 621 F.3d 1131,
1135 (9th Cir. 2010), we reject Marquez’s challenge to the sufficiency of the
evidence. A rational trier of fact could have relied on the testimony of the
prosecution’s expert and concluded beyond a reasonable doubt that the crimes
involved 50 grams or more of actual methamphetamine. See Jackson v. Virginia,
443 U.S. 307, 319 (1979).
The admission of expert testimony regarding the Mexican Mafia and
Marquez’s membership in that organization was not an abuse of discretion. See
United States v. Serang, 156 F.3d 910, 915 (9th Cir. 1998). The evidence was
relevant, Fed. R. Evid. 402, its probative value outweighed any prejudicial effect,
Fed. R. Evid. 403, and it was an appropriate subject for expert testimony, see Fed.
R. Evid. 702; United States v. Rodriguez, No. 12-50132, 2014 WL 2766197, at *14
(9th Cir. June 19, 2014) (permitting expert testimony regarding hierarchy of
Mexican Mafia). Under de novo review, we also conclude that the testimony did
not amount to “other crimes” evidence and was admitted for a non-character
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purpose. See Fed. R. Evid. 404(b); United States v. Santiago, 46 F.3d 885, 889 (9th
Cir. 1995).
Finally, Marquez’s mandatory life sentences are not subject to reversal.
Mandatory minimum sentences do not violate due process or the Eighth
Amendment, see Harmelin v. Michigan, 501 U.S. 957, 994–96 (1991); United
States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991), and 18 U.S.C. §
3553(a) does not permit a district court to impose a sentence below the mandatory
minimum, United States v. Wipf, 620 F.3d 1168, 1169–70 (9th Cir. 2010).
AFFIRMED.