Summary
holding that district court did not error by admitting testimony that defendant encouraged or approved a threat against a government witness
Summary of this case from United States v. ArnoldOpinion
No. 13-50074 D.C. No. 3:11-cr-05687-AJB-2
01-14-2014
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ENRIQUE MERCADO-CUEN, Defendant - Appellant.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted January 8, 2014
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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Pasadena, California
Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.
1. The district court did not plainly err by admitting testimony concerning the threat made against one of the government's witnesses. It's true, as Mercado-Cuen argues, that he did not make the threat himself. But Mercado-Cuen did make statements suggesting that he had encouraged or approved of the threat, and those statements were relevant because they tended to show consciousness of guilt. See United States v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995). The probative value of the testimony outweighed any danger of unfair prejudice. Evidence of an attempt to intimidate a witness is "second only to a confession in terms of probative value" regarding consciousness of guilt. Id.
2. The district court did not abuse its discretion at sentencing. Contrary to Mercado-Cuen's argument, the court did not attach a presumption of reasonableness to the Guidelines range or give undue weight to that range. See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc). Instead, the court repeatedly stated that the base offense level was advisory and properly "treated the Guidelines range as a baseline, and moved from there to tailor a sentence to the individualized offense and offender characteristics." Id.
AFFIRMED.