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 2020-12

United States v. Aaron Ordonez ( 2020 )


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  •                                                                               FILED
NOT FOR PUBLICATION
DEC 14 2020
UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No.   20-10059
Plaintiff-Appellee,                D.C. No.
2:18-cr-00539-DGC-1
v.
AARON ANTHONY ORDONEZ,                           MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted December 10, 2020**
San Francisco, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
Aaron Anthony Ordonez appeals his conviction and sentence after a jury
found him guilty of distributing child pornography, in violation of
    18 U.S.C. § 2252
    (a)(2), and possessing child pornography, in violation of
    18 U.S.C. § 2252
    (a)(4)(B). We have jurisdiction under
    28 U.S.C. § 1291
     and
    18 U.S.C. § 3742
    (a), and we affirm.
We decline to rule on Ordonez’s claim that his trial counsel rendered
ineffective assistance. Neither of the two circumstances permitting us to review
ineffective assistance claims on direct appeal is present here. See United States v.
Lillard,
    354 F.3d 850
    , 856 (9th Cir. 2003). The record on appeal is not sufficient
to evaluate whether trial counsel’s strategy at trial (including his cross-examination
of government witnesses, decision not to hire an expert witness, and decision not to
present additional alibi evidence) was deficient. See United States v. McGowan,
    668 F.3d 601
    , 605 (9th Cir. 2012). Nor does the record on appeal provide a basis
for a claim that the trial counsel’s representation denied Ordonez his Sixth
Amendment right to counsel, given that his trial counsel filed multiple pretrial
motions to compel and suppress evidence, obtained favorable jury instructions,
called two witnesses, and cross-examined each of the government’s witnesses. See
Lillard,
    354 F.3d at 
    856–57.
2
The district court did not abuse its discretion under Rule 404(b) of the
Federal Rules of Evidence by permitting testimony on uncharged conduct and the
number of images of child pornography that Ordonez downloaded. The evidence
was relevant to whether Ordonez “knowingly” transported or distributed child
pornography in violation of
    18 U.S.C. § 2252
    (a)(2), see United States v. Hardick,
    766 F.3d 1051
    , 1055–56 (9th Cir. 2014), and the district court considered the other
relevant factors. See United States v. Luna,
    21 F.3d 874
    , 878 (9th Cir. 1994);
United States v. Ramirez-Robles,
    386 F.3d 1234
    , 1242 (9th Cir. 2004). The district
court properly applied Rule 403 by giving the jury a limiting instruction and
barring the government from publishing the files of uncharged conduct to the jury.
See United States v. Vo,
    413 F.3d 1010
    , 1019 (9th Cir. 2005).
Ordonez now claims that the district court’s calculation of the restitution
amount violated the Ex Post Facto Clause, U.S. Const. art 1, § 9, cl. 3, and
Paroline v. United States,
    572 U.S. 434
    , 457 (2014). Because Ordonez did not
raise these claims to the district court, we review them for plain error. See Fed. R.
Crim. P. 52(b); United States v. Yijun Zhou,
    838 F.3d 1007
    , 1010 (9th Cir. 2016).
There is no evidence that the district court relied on the $3,000 mandatory
minimum restitution amount from the 2018 amendments to
    18 U.S.C. § 2259
    ;
rather, the district court required restitution payments of $5,000 per victim.
3
Therefore, the district court did not plainly violate the Ex Post Facto Clause.
Ordonez further argues that the district court misinterpreted the government’s
evidence that the victims were harmed by his repeated viewing of their images, but
“an error that hinges on a factual dispute is not ‘obvious’ as required by the ‘plain
error’ standard.” Yijun Zhou, 838 F.3d at 1011 (citation omitted). Therefore, the
district court did not plainly err in applying Paroline.
AFFIRMED.
4