United States v. Tiffany Wilson , 533 F. App'x 765 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 12-10222
)
Plaintiff – Appellee, ) D.C. No. 4:11-cr-03035-JGZ-HCE-1
)
v. ) MEMORANDUM*
)
TIFFANY NICOLE WILSON, )
)
Defendant – Appellant. )
)
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted July 8, 2013**
San Francisco, California
Before: FERNANDEZ, PAEZ, and BERZON, Circuit Judges.
Tiffany Nicole Wilson appeals her conviction and sentence for possession of
marijuana for sale. See 21 U.S.C. § 841(a)(1), (b)(1)(C). We affirm.
(1) Wilson first argues that the district court erred when it excluded the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
out of court statement of Joel Fuentes. We disagree. The statement was hearsay,1
and was not admissible as an exception for statements against interest,2 or pursuant
to the residual exception.3 It was neither of an inculpatory nature4 nor reliable.5
Nor was any exceptional circumstance shown. See United States v. Bonds, 608
F.3d 495, 500–01 (9th Cir. 2010).
(2) Wilson next claims that the district court erred when it excluded the
testimony of Rebecca Molina. However, the district court did not abuse its
discretion6 when it determined that the evidence of a wholly separate and
dissimilar transport of marijuana was not relevant7 and, in effect, was unduly
prejudicial.8
1
See Fed. R. Evid. 801.
2
See Fed. R. Evid. 804(b)(3).
3
See Fed. R. Evid. 807(a).
4
See United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003); see also
Williamson v. United States, 512 U.S. 594, 603–04, 114 S. Ct. 2431, 2437, 129 L.
Ed. 2d 476 (1994).
5
See Shryock, 342 F.3d at 982; see also Lilly v. Virginia, 527 U.S. 116, 131,
119 S. Ct. 1887, 1897, 144 L. Ed. 2d 117 (1999).
6
See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004).
7
See Fed. R. Evid. 401.
8
See Fed. R. Evid. 403; United States v. Wiggan, 700 F.3d 1204, 1213 (9th
(continued...)
2
(3) Wilson then asserts that the district court erred when it admitted
expert testimony regarding the use of unknowing drug couriers. We do not agree.
The district court was not required to conduct a pretrial qualification hearing,9 and
the expert’s background and expertise were thoroughly supported by the evidence
developed at trial.10 Moreover, admitting testimony regarding the use (or, rather,
nonuse) of unknowing drug couriers was proper in this case. See United States v.
Sepulveda-Barraza, 645 F.3d 1066, 1072 (9th Cir. 2011); United States v. Murillo,
255 F.3d 1169, 1177–78 (9th Cir. 2001), overruled on other grounds as recognized
in United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007).
(4) Wilson also claims that the district court erred when it did not give her
proffered, and argumentative, instruction on knowledge. However, the instructions
given by the district court made it plain that the prosecution had to prove
knowledge,11 and the court was not required to instruct in the language desired by
8
(...continued)
Cir. 2012).
9
See United States v. Alatorre, 222 F.3d 1098, 1103–04 (9th Cir. 2000).
10
See United States v. Hankey, 203 F.3d 1160, 1168–70 (9th Cir. 2000); see
also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42, 119 S. Ct. 1167, 1171,
143 L. Ed. 2d 238 (1999).
11
See United States v. Romm, 455 F.3d 990, 1002 (9th Cir. 2006).
3
Wilson;12 she could argue her lack of knowledge to the jury, which was not
subjected to misleading or inadequate instructions regarding knowledge.13 The
district court did not err.
(5) Finally, Wilson asserts that her sentence must be set aside because the
district court procedurally erred and the sentence was substantively unreasonable.
Not so. The record shows that the district court adequately considered the 18
U.S.C. § 3553(a) factors, and sufficiently explained the sentence. See United
States v. Rangel, 697 F.3d 795, 806 (9th Cir. 2012); United States v. Carty, 520
F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, we will not consider Wilson’s
claim that the district court should have considered her “aberrant behavior”14
departure assertion when it calculated her guideline range. That is a matter that is
encompassed in the substantive reasonableness alchemy because it can be treated
as a reason for a variance.15 In fact, in this case, the district court expressly treated
12
See United States v. Thomas, 612 F.3d 1107, 1122 n.7 (9th Cir. 2010);
Romm, 455 F.3d at 1002.
13
See United States v. Orozco-Acosta, 607 F.3d 1156, 1164–65 (9th Cir.
2010).
14
See USSG §5K2.20. All references to the guidelines in this disposition are
to the November 1, 2011, version.
15
See United States v. Ellis, 641 F.3d 411, 421–22 (9th Cir. 2011); United
States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008); United States v. Mohamed,
459 F.3d 979, 986–87 (9th Cir. 2006).
4
the aberrant behavior assertion as a variance consideration.
Nor can we say that the sentence was substantively unreasonable. The
guideline range for her offense was from fifty-one to sixty-three months,16 but the
district court fixed her sentence at thirty-six months. In so doing, the district court
sufficiently explained its decision,17 and on the record before us we cannot say that
the below guideline range sentence was unreasonable.18
AFFIRMED.
16
See USSG §2D1.1(a)(5), (c)(8); see also USSG Ch. 5, Pt. A, sentencing
table.
17
See United States v. Petri, __ F.3d __, __, No. 11-30337, 2013 WL
1490604, at *7–8 (9th Cir. Apr. 12, 2013); Carty, 520 F.3d at 992–93; United
States v. Maciel-Vasquez, 458 F.3d 994, 995 (9th Cir. 2006).
18
See United States v. Oseguera-Madrigal, 700 F.3d 1196, 1200 (9th Cir.
2012); United States v. Espinoza-Baza, 647 F.3d 1182, 1195 (9th Cir. 2011);
Carty, 520 F.3d at 994 (guideline sentences “‘will usually be reasonable’”).
5