Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Karen A. Escobar, Esq., USF--Office of the U.S. Attorney, Fresno, CA, for Plaintiff-Appellee.
Gary L. Huss, Esq., Wild Carter & Tipton, Fresno, CA, for Defendant-Appellant Victor Sanchez Sepulveda.
John Ward, San Francisco, CA, for Defendant-Appellant Gilberto Maldonado.
Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-02-05408-OWW.
Before: T.G. NELSON, SILVERMAN, and RAWLINSON, Circuit Judges.
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.
Victor Sanchez Sepulveda appeals the district court's admission of evidence of his prior conviction and his sentence. Gilberto Maldonado appeals the district court's admission of evidence that the gun found in his car was stolen. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I. Sepulveda's Appeal
The district court did not abuse its discretion when it admitted evidence of Sepulveda's prior conviction. The evidence was highly probative of the knowledge element of the methamphetamine charge for which he was on trial. The evidence was not unfairly prejudicial because it was not the kind of inflammatory material that would bias the jury such that it would be unable properly to judge Sepulveda's "guilt or innocence of the crime charged."
See United States v. Bussell, 414 F.3d 1048, 1059 (9th Cir.2005) (reciting the standard of review).
See United States v. Basinger, 60 F.3d 1400, 1407-08 (9th Cir.1995) (upholding the admission of evidence that the defendant previously had been arrested in possession of an essential chemical used to produce methamphetamine to prove the intent and knowledge elements of the current methamphetamine charges); United States v. Spillone, 879 F.2d 514, 518-520 (9th Cir.1989) (affirming admission of 404(b) evidence to show intent--"a material element of th[e] case"--even though the defendant represented that he would not raise lack of intent as a defense).
See United States v. Ramirez-Jiminez, 967 F.2d 1321, 1327 (9th Cir.1992) (internal quotation marks omitted).
The district court also did not violate Sepulveda's Fifth and Sixth Amendment rights when it sentenced him. Following United States v. Booker and 18 U.S.C. § 3553(a), the district court properly considered the Guidelines' recommendation, as well as the factors set forth in § 3553(a).
See United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir.2005) (en banc); United States v. Clark, 452 F.3d 1082, 1086 (9th Cir.2006).
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
See id. at 259, 125 S.Ct. 738.
II. Maldonado's Appeal
We need not decide whether the district court erred when it admitted evidence regarding the gun because any such error was harmless for two reasons. First, the jury acquitted Maldonado of the weapons charge for which the potential for prejudice was greatest. Second, the overwhelming evidence of Maldonado's guilt regarding the drug charges establishes that the jury would have convicted him notwithstanding the evidence about the
See M2 Software, Inc. v. Madacy Ent., Inc., 421 F.3d 1073, 1088 (9th Cir.2005) (holding that, even if the district court's admission of evidence constituted an abuse of discretion, reversal was not warranted because the error was harmless).
Page 696.
See United States v. Gonzalez-Flores, 418 F.3d 1093, 1099, 1102 (9th Cir.2005); United States v. Marshall, 526 F.2d 1349, 1358 (9th Cir.1975).
AFFIRMED.