United States v. Okitsu ( 2003 )

MEMORANDUM ^**

Ronald Brian Okitsu appeals his conviction and sentence for bringing an alien into this country without presentation and for financial gain. See 8 U.S.C. § 1324(a)(2)(B)(ii)-(iii); 18 U.S.C. § 2. We affirm.

1. Okitsu claims that the whole indictment should fall because the Grand Jury was misinstrueted. But we have previously declared that the selfsame instructions were not unconstitutional. See United States v. Marcucci, 299 F.3d 1156, 1159, 1164 (9th Cir.2002); see also United States v. Cedano-Arellano, 332 F.3d 568, 573 (9th Cir.2003). This panel is in no position to reconsider that decision. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001); Bell v. Hill, 190 F.3d 1089, 1092-93 (9th Cir.1999).

2. Okitsu also claims that the prosecutor’s argument regarding a lack of evidence to contradict that of the prosecution witnesses constituted misconduct. It did not. The argument did not call attention to OMtsu’s failure to testify or imply that the prosecution did not have the burden of persuasion. See United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991); see also United States v. Cabrera, 201 F.3d 1243, 1246, 1249-50 (9th Cir.2000). It simply pointed up the obvious weaknesses in Okitsu’s defense. See United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir.1995).

3. Okitsu finally asserts that the district court erred when it denied him a minor role adjustment. See USSG § 3B1.2 (Nov.2002). However, we cannot say that the district court erred when it determined that a minor role adjustment was not called for on this record. See United States v. Hernandez-Franco, 189 F.3d 1151, 1160 (9th Cir.1999); United States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir.1997).

AFFIRMED.

** 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.