United States v. Hector Cervantes-Torres , 622 F. App'x 634 ( 2015 )

FILED
NOT FOR PUBLICATION
NOV 06 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50331
Plaintiff - Appellee, D.C. No. 8:13-cr-00206-DOC-1
v.
MEMORANDUM*
HECTOR MANUEL CERVANTES-
TORRES, AKA Hector Manuel Cervantes,
AKA Manuel Hector Cervantes, AKA
Hector Cervantes-Torres,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted October 23, 2015**
Pasadena, California
Before: KOZINSKI, IKUTA, and OWENS, Circuit Judges.
Hector Manuel Cervantes-Torres appeals his jury conviction for being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), being an
*
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).
illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A),
and being an illegal alien found in the United States following deportation in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
affirm.
1. Any error in admitting, without limiting instructions, evidence of
Cervantes-Torres’s prior felony conviction and hunting warning and Officer
Wade’s reasons for stopping Cervantes-Torres, was neither plain nor affected
substantial rights. United States v. Olano, 507 U.S. 725, 733-35 (1993). Each had
some probative value that was not so clearly outweighed by the prejudicial effect
as to constitute plain error. See United States v. Hardy, 289 F.3d 608, 612 (9th Cir.
2002). The failure to give instructions regarding the limited purpose of prior-act
evidence where no limiting instructions were requested was not reversible error.
See United States v. Multi-Mgmt., Inc., 743 F.2d 1359, 1364 (9th Cir. 1984).
Furthermore, given the strength of the government’s case against Cervantes-
Torres, including his various admissions on the witness stand, any error did not
affect substantial rights.
2. Cervantes-Torres’s claim of ineffective assistance of trial counsel is not
cognizable on direct appeal. Ordinarily, ineffective assistance claims must be
reviewed via petition for habeas corpus, Massaro v. United States, 538 U.S. 500,
2 14-50331
504-05 (2003), unless “the record on appeal is sufficiently developed to permit
determination of the issue” or “the legal representation is so inadequate that it
obviously denies a defendant his Sixth Amendment right to counsel.” United
States v. McGowan, 668 F.3d 601, 605 (9th Cir. 2012). Neither exception applies
here. Counsel may have had strategic reasons for failing to collaterally attack a
deportation order based on new law issued after the entry of the deportation order,
and may have had strategic reasons for the decision not to move for severance,
such as to avoid the risk of consecutive sentences. See id. at 606 (“[C]ounsel has
not yet had an opportunity to explain his actions.”); see also Massaro, 538 U.S. at
505 (“The trial record may contain no evidence of alleged errors of omission, much
less the reasons underlying them.”).
3. Appellee’s motion for judicial notice is denied.
AFFIRMED.
3 14-50331