FILED
NOT FOR PUBLICATION OCT 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30269
Plaintiff - Appellee, D.C. No. 1:11-cr-00008-RFC-1
v.
MEMORANDUM*
ELISEO DOMINGUES-CHALPENO,
AKA Hipolite Domingues, AKA
Alejandro Rivera-Cortez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued and Submitted October 9, 2013
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Defendant Eliseo Domingues-Chalpeno (“Domingues”) appeals his jury
conviction and 151-month sentence for possession of and conspiracy to possess
with intent to distribute methamphetamine. He claims 1) the district court erred in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
admitting the government investigator’s testimony concerning out-of-court
statements by a hotel clerk; 2) there was insufficient evidence to support his
conviction; 3) his trial counsel made an inappropriate statement before the jury; 4)
he was entitled to a four-level downward sentencing adjustment as a minimal
participant; and 5) his sentence was unreasonable. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.1
Assuming, without deciding, that Agent Smith’s testimony regarding the
hotel clerk’s out-of-court statements was hearsay, its admission was harmless error.
Even excluding this testimony, there was more than enough evidence introduced at
trial to allow a rational juror to find all the elements of the possession and
conspiracy charges beyond a reasonable doubt. See United States v. Alvarez, 358
F.3d 1194, 1214 (9th Cir. 2004). This evidence showed that, among other things,
Domingues was closely associated with his co-defendants for two or three weeks
before the trip; drove twelve hours overnight, ostensibly to talk to someone about a
roofing job; did not bring any tools or cold-weather clothing for the trip; spent only
a few hours in Montana before beginning the return trip; checked in and out of the
hotel the same morning; helped carry and purchase the materials used to hide the
1
Because the parties are familiar with the facts and procedural history,
we do not restate them except as necessary to explain our decision.
2
drugs; helped withdraw $800 from an ATM during the shopping trip; and was a
passenger in a car in which almost two pounds of high-purity methamphetamine
was found in a box of Tide detergent in the trunk and a bag containing Krazy Glue,
knives, and loose Tide powder was found in the back seat. The evidence also
showed that Domingues and his co-conspirators borrowed the car after telling the
owner that they were going to the store, and when they were pulled over, they had
almost no money other than the $235 they used to pay the citation for driving
without a license, despite having withdrawn $800 earlier in the day. Based on this
and all other evidence introduced at trial, we do not have any “grave doubt”
whether Agent Smith’s testimony regarding the clerk’s out-of-court statements
substantially affected the verdict. See United States v. Lindsey, 634 F.3d 541, 553
(9th Cir. 2011) (citation omitted).
Based on the same evidence discussed above, there was clearly sufficient
evidence to allow a rational juror to find all the elements of the possession and
conspiracy charges beyond a reasonable doubt. See United States v. Nevils, 598
F.3d 1158, 1164 (9th Cir. 2010) (en banc).
The district court did not err in failing to sua sponte declare a mistrial in
response to defense counsel’s statement before the jury that he had instructed his
client not to testify. Such a statement was as likely to bias the jury in his favor as
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to bias the jury against him, and thus there was no plain error. See United States v.
Olano, 507 U.S. 725, 733-37 (1993); United States v. Banks, 514 F.3d 959, 973
(9th Cir. 2008).
Domingues has not shown that the district judge erred in sentencing. The
district court found that Domingues was not a minimal participant under the
Sentencing Guidelines. Such determination was not clearly erroneous for the same
reasons there was sufficient evidence to convict Domingues. See United States v.
Cantrell, 433 F.3d 1269, 1282-84 (9th Cir. 2006). Nor was Domingues’ sentence
unreasonable, given the district court’s discussion of Domingues’ failure to accept
responsibility, conviction for two serious drug offenses, participation in a group at
the top of the methamphetamine “food chain,” illegal presence in this country, and
three separate state identification numbers. See United States v. Overton, 573 F.3d
679, 700 (9th Cir. 2009).
AFFIRMED.
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