FILED
NOT FOR PUBLICATION
OCT 05 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10231
Plaintiff - Appellee, D.C. No. 3:13-cr-08043-GMS-1
v.
MEMORANDUM*
VALANCE RAY SMITH, Sr., AKA
Valance Ray Smith,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted September 17, 2015**
San Francisco, California
Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.
Defendant-Appellant Valance Ray Smith (“Smith”) appeals his 2014
convictions and sentence for assault with a dangerous weapon with intent to do
bodily harm and assault resulting in serious bodily injury under 18 U.S.C. §§
*
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).
113(a)(3), 113(a)(6), and 1153. Because the parties are familiar with the facts and
procedural history, we do not restate them except as necessary to explain our
decision. We have jurisdiction under 28 U.S.C § 1291, and we affirm.
1. The district court properly denied Smith’s motion to suppress
evidence from the searches of his home upon determining that Smith freely and
voluntarily consented to those searches. See Georgia v. Randolph, 547 U.S. 103,
109 (2006). Although Smith appeared intoxicated during the two searches, he had
already begun cleaning the crime scene, gave his own version of the events, was
able to answer the officer’s questions and sign the consent form without any
difficulty, was alert, cooperative, and steady on his feet, had no trouble helping the
officer lift a mattress, and did not appear to be confused at any point. Under these
circumstances, the district court did not clearly err in determining that a reasonable
officer would have viewed Smith’s consent as voluntary. See United States v.
Koshnevis, 979 F.2d 691, 694–95 (9th Cir. 1992).
2. The district court also properly denied Smith’s motion to suppress his
statements made in custody, based on its determination that Smith voluntarily
waived his Miranda rights under the totality of the circumstances. See Miranda v.
Arizona, 384 U.S. 436, 444–45 (1966). There is no direct evidence that Smith was
intoxicated when he executed a written waiver at the time of his interrogation, nor
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is there evidence to support the attenuated inference that because Smith was
intoxicated when he was arrested the night before, he would have remained so 17
hours later when interrogated. To the contrary, Smith was able to lucidly and
coherently answer questions, was consistently responsive, and never asked for
questioning to stop. Under these circumstances, the district court did not clearly
err in determining that Smith’s waiver was the “product of his free will and rational
choice.” See United States v. Martin, 781 F.2d 671, 673–74 (9th Cir. 1985).
3. Even assuming the district court erred in finding joinder proper under
Federal Rule of Criminal Procedure 8(a), this error does not require reversal
because it did not result in actual prejudice that had a “substantial and injurious
effect or influence” on the jury’s verdict. See United States v. Jawara, 474 F.3d
565, 579 (9th Cir. 2007) (quoting United States v. Terry, 911 F.2d 272, 277 (9th
Cir. 1990)). The district court properly instructed the jury to consider the charges
separately. Further, even if the charges had been severed and tried separately,
evidence regarding both episodes of assault would likely have been admitted in
both trials to rebut Smith’s defenses of self-defense and self-injury. Both of these
factors weigh against a finding of actual prejudice. See id. at 579–80 (citing
United States v. Lane, 474 U.S. 438, 450 (1986)).
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4. The district court did not abuse its discretion by denying Smith’s
motion to sever under Federal Rule of Criminal Procedure 14(a). See United States
v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008). Because Smith did not renew his
severance motion at the close of trial and he has not shown that he diligently
pursued severance or that renewal would be an unnecessary formality, his
severance claim is waived on appeal. See United States v. Decoud, 456 F.3d 996,
1008 (9th Cir. 2006); Terry, 911 F.2d at 277. Even assuming Smith’s severance
claim under Rule 14(a) was properly preserved, Smith cannot satisfy his burden
under Rule 14(a) of demonstrating manifest prejudice because he cannot show that
joinder prejudiced him under Rule 8(a)’s less demanding “actual prejudice”
standard. See Jawara, 474 F.3d at 579, 581.
5. The district court did not abuse its discretion in denying Smith’s
request for a downward departure or variance. Sentencing decisions, including
whether to grant a downward departure or variance, are reviewed for abuse of
discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). In
light of Smith’s history of numerous violent crimes, including several that were not
counted in his Guidelines calculation because they were tribal convictions, the
district court reasonably determined that his criminal history category did not
overrepresent his criminal history. The district court also reasonably determined
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that Smith’s intoxication and history of alcohol abuse did not warrant a downward
departure or variance in light of the seriousness of the offenses.
AFFIRMED.
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