FILED
NOT FOR PUBLICATION NOV 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30059
Plaintiff - Appellee, D.C. No. 3:10-cr-05629-RBL
v.
MEMORANDUM*
DONATO VALLE VEGA,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted October 8, 2014
Seattle, Washington
Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.
Defendant-Appellant Donato Valle Vega (“Vega”) appeals his conviction
and sentence for possession of methamphetamine and cocaine with intent to
distribute. Vega argues that the district court erred when it 1) denied his motion to
suppress evidence including drugs and guns seized from his business and two other
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
locations; 2) selected two alternate jurors but did not grant Vega an additional
peremptory challenge and then designated the alternate jurors via a blind lottery at
the close of the case; 3) denied his request for a duress jury instruction; and 4)
failed to provide an adequate explanation for his sentence. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.1
1. We review de novo the district court’s denial of Vega’s motion to
suppress, though we review for clear error its factual finding that consent was
voluntary. See United States v. Brown, 563 F.3d 410, 414 (9th Cir. 2009).
“[E]vidence regarding the question of consent must be viewed in the light most
favorable to the fact-finder’s decision.” Id. (citations and internal quotation marks
omitted). The district court noted that (1) Vega was not in custody when he
consented to the searches; (2) the officers did not draw their guns; (3) the officers
gave Vega a Miranda warning before the searches; (4) the officers told Vega that
he had the right to refuse consent; and (5) Vega was not told that a search warrant
could be obtained. Based on these factual findings, the district court did not clearly
err in finding that Vega voluntarily consented to the searches. See id. at 414–15.
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Because the parties are familiar with the facts and procedural history,
we do not restate them except as necessary to explain our decision.
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2. The district court erred when it selected fourteen jurors but failed to
grant Vega an additional peremptory challenge and when it randomly designated
the alternate jurors at the close of trial. See Fed. R. Cr. P. 24(c) (providing that
where the district court impanels one or two alternate jurors, “[e]ach side is entitled
to” one additional peremptory challenge); United States v. Aguon, 851 F.2d 1158,
1171 (9th Cir. 1988) (en banc) (designation of alternate jurors at the start of jury
deliberation was an “unauthorized deviation from standard procedure”) (citation
omitted), overruled on other grounds by Evans v. United States, 504 U.S. 255
(1992). Indeed, the government concedes that the district court’s jury selection
process did not comply with Federal Rule of Criminal Procedure 24.
Nevertheless, the erroneous denial or restriction of a peremptory challenge
and the improper designation of alternate jurors at the close of trial are not grounds
for reversal if the errors were harmless. See United States v. Lindsey, 634 F.3d
541, 548–51 (9th Cir. 2011); Aguon, 851 F.2d at 1171. Vega does not argue and
the record does not show that any of the selected jurors were biased. Further, Vega
has not indicated whom he would have sought to strike had he been granted the
additional peremptory challenge to which he was entitled. Thus, while the district
court’s jury selection procedures were contrary to Rule 24, the errors were
harmless. See Lindsey, 634 F.3d at 550–51.
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3. A defendant is not entitled to receive a jury instruction on duress
unless the defendant makes a prima facie case establishing “(1) an immediate
threat of death or serious bodily injury, (2) a well-grounded fear that the threat will
be carried out, and (3) lack of a reasonable opportunity to escape the threatened
harm.” United States v. Ibarra-Pino, 657 F.3d 1000, 1004 (9th Cir. 2011) (citation
and internal quotation marks omitted). Because Vega was not under constant
surveillance and had several opportunities to escape or safely turn himself in to the
authorities, the district court did not err in determining that Vega had not made the
required prima facie case.
4. Under Rita v. United States, 551 U.S. 338, 356 (2007), a sentencing
court must “set forth enough to satisfy the appellate court that [it] has considered
the parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Where a judge simply applies the Guidelines, less
explanation is required, and the reasons for a sentence may be clear from the
record as a whole. Id. at 357–59. Here, the district court listened to Vega’s
sentencing arguments but emphasized the quantity of the drugs and the seriousness
of trafficking in methamphetamine. Further, the court had already explicitly or
implicitly rejected Vega’s claims that he was under duress or acting at the direction
of the government. Finally, the district court imposed a substantially below-
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Guidelines sentence. Given the facts of this case and the record as a whole, the
district court’s statement of reasons was sufficient.
AFFIRMED.
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