United States v. Ibarra-Pino , 450 F. App'x 629 ( 2011 )

FILED
NOT FOR PUBLICATION SEP 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50341
Plaintiff - Appellee, D.C. No. 3:09-cr-03768-L-1
v.
MEMORANDUM *
CHRISTOPHER IBARRA-PINO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted June 10, 2011
Pasadena, California
Before: KOZINSKI, Chief Judge, IKUTA, Circuit Judge, and BOLTON, District
Judge.**
Christopher Ibarra-Pino (“Ibarra”) appeals his jury conviction and sentence for
importation of marijuana in violation of 21 U.S.C. §§ 952 and 960 and possession of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
marijuana in violation of 21 U.S.C. § 841(a)(1). In a separate opinion filed
concurrently with this memorandum disposition, we affirm the district court’s rulings
on Ibarra’s duress defense. With respect to Ibarra’s other arguments, we also affirm.
First, the district court did not abuse its discretion by excluding evidence related
to the culpability of a third party. The probative value of the excluded evidence was
low, and the evidence presented a danger of unfair prejudice. See United States v.
Waters, 627 F.3d 345, 353 (9th Cir. 2010). Even if the district court improperly
excluded relevant evidence, any error was harmless as it is more likely than not that
exclusion of the evidence did not materially affect the verdict. See id. at 358. Further,
exclusion of the evidence did not violate Ibarra’s constitutional right to present a
defense because the district court’s rulings did not prevent him from presenting
important evidence that would have “added substantially” to the jury’s knowledge.
See United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992); cf. United
States v. Stever, 603 F.3d 747, 755-57 (9th Cir. 2010).
Second, any prosecutorial misconduct here does not require reversal. Although
the prosecutor’s questioning elicited improper testimony concerning Ibarra’s
credibility, the improper testimony does not warrant reversal because it is not likely
that the testimony materially affected the fairness of the trial. See United States v.
Wright, 625 F.3d 583, 613 (9th Cir. 2010) (citing United States v. Hermanek, 289 F.3d
21076, 1102 (9th Cir. 2002)). Additionally, the prosecutor did not commit misconduct
by stating in closing that the defense could have presented the video recording
referenced by defense counsel in closing argument. The prosecutor’s statement was
accurate and did not amount to misconduct. Cf. United States v. Cabrera, 201 F.3d
1243, 1250 (9th Cir. 2000).
Finally, the district court did not err in sentencing Ibarra. Nothing in the record
indicates that the decision to deny Ibarra’s requested downward departure was based
on an incorrect understanding of the Sentencing Guidelines. See United States v.
Pizzichiello, 272 F.3d 1232, 1239 (9th Cir. 2001). Moreover, after United States v.
Booker, 543 U.S. 220 (2005), we have held that we do not review a district court’s
downward or upward departures for errors, but only consider the overall sentence for
substantive reasonableness, United States v. Mohamed, 459 F.3d 979, 986-87 (9th Cir.
2006), a standard satisfied here, see United States v. Carty, 520 F.3d 984, 993-94 (9th
Cir. 2008) (en banc). In addition, the district court did not commit procedural error by
selecting a sentence based on clearly erroneous facts; the district court explicitly stated
that it did not consider a non-existent prior conviction in determining the appropriate
sentence and sentenced Ibarra below the suggested Guidelines range. See Gall v.
United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
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