United States v. Jose Romos-Gonzales

FILED
NOT FOR PUBLICATION OCT 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30204
Plaintiff - Appellee, D.C. No. 1:11-cr-00141-BLW-2
v.
MEMORANDUM*
JOSE ROMOS-GONZALES, AKA
Taliban,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted October 8, 2013**
Seattle, Washington
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.
A jury convicted Defendant-Appellant Jose Romos-Gonzales of distributing
and conspiring to distribute methamphetamine in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§§ 841(a)(1) and 846, and the district court sentenced him to 188 months in prison.
We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291, and we affirm.
The district court’s finding that Romos-Gonzales did not invoke his right to
counsel on the night of his arrest was not clearly erroneous: three police officers
testified to that fact at the suppression hearing. See United States v. I.E.V., 705
F.3d 430, 434 (9th Cir. 2012) (denial of motion to suppress reviewed for clear
error); United States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (describing the
clear error standard as “illogical, implausible, or without support in the record”).
Romos-Gonzales forfeited his argument that his Miranda waiver on the
night of his arrest was not knowing, voluntary, and intelligent. See United States v.
Scott, 705 F.3d 410, 415 (9th Cir. 2012) (explaining the difference between a
“waiver” and a “forfeiture”). Romos-Gonzales raised this argument in his motion
to suppress, but he failed to make it at the suppression hearing when given the
opportunity. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d
955, 957 (9th Cir. 1989) (an issue is not properly preserved unless it was “raised
sufficiently for the trial court to rule on it”). We decline to address that argument
here.
The prosecutor’s remarks during closing arguments did not clearly or
obviously constitute vouching. See Puckett v. United States, 556 U.S. 129, 135
2
(2009) (review is for plain error where the appellant fails to object in the district
court). Romos-Gonzales’s entire case, from start to finish, hinged on impugning
the integrity of the government’s investigation and witnesses; the prosecutor was
permitted to note during his closing argument that Romos-Gonzales’s theory was
not supported by any evidence. See United States v. Keyser, 704 F.3d 631, 643
(9th Cir. 2012) (prosecutor’s conduct is to be considered “in the context of the
entire trial”); United States v. Wilkes, 662 F.3d 524, 540–41 (9th Cir. 2011)
(“[P]rosecutors are permitted to respond to defense counsel’s attempts to impeach
the credibility of government witnesses.”).
AFFIRMED.
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