United States v. Johnny Soliz

FILED
NOT FOR PUBLICATION JAN 29 2010

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. 09-30049

Plaintiff - Appellee, DC No. CR 08-2009 LRS

v.
MEMORANDUM *
JOHNNY ANGEL SOLIZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding

Argued and Submitted January 12, 2010
Seattle, Washington

Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.

Johnny Soliz appeals his conviction of one count of assault with intent to rob

a custodian of the United States mail, in violation of 18 U.S.C. § 2114(a), and his

subsequent sentencing to 120 months in prison. We have jurisdiction under 28

U.S.C. § 1291 and affirm both Soliz’s conviction and sentence.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
 Soliz argues that the district court committed reversible error by allowing the

government to introduce testimony at trial that constituted inadmissible hearsay,

violated his constitutional right to confront the witnesses against him, and

amounted to improper vouching and bolstering in violation of his due process

rights. Soliz’s counsel conceded at oral argument that we review these claims for

plain error because Soliz did not make timely, correct, and specific objections at

trial to the evidence he now challenges on appeal. See United States v. Gomez-

Norena, 908 F.2d 497, 500 (9th Cir. 1990).

Under this standard, we will reverse if there is “(1) error, (2) that was plain,

and (3) that affected substantial rights.” United States v. Ramirez, 537 F.3d 1075,

1081 (9th Cir. 2008). Such “[r]eversal is proper only if, viewed in the context of

the entire trial, the impropriety seriously affected the fairness, integrity, or public

reputation of judicial proceedings, or where failing to reverse a conviction would

result in a miscarriage of justice.” United States v. Combs, 379 F.3d 564, 568 (9th

Cir. 2004) (internal quotations and citations omitted).

In this case, assuming arguendo that the admission of the testimony now

challenged by Soliz constituted error, no plain error occurred, in light of the

strength of the government’s case against Soliz. The victim of the crime identified

Soliz as her attacker both in a photo montage and again at his trial. She saw him

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up close at the time of the robbery, in adequate lighting. The crime was captured

on video tape and shows a suspect matching Soliz’s description as the perpetrator.

The jury asked to review the video, and photographic evidence derived from it, for

a second time before it returned its verdict. In light of this strong evidence of guilt,

Soliz’s substantial rights were not affected by the admission of improper testimony

at his trial.

Soliz also argues that the district court committed reversible error by

rejecting his request for a below Guideline sentence without specifically discussing

the defendant’s mental health report from Dr. Mays. When sentencing, a “judge

should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). The

district court did so in this case.

The record indicates that the district court carefully weighed many factors,

including the defendant’s health issues and diagnoses, in making his sentencing

determination. “[W]hen a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy explanation.” Id.

“Where the defendant . . . presents nonfrivolous reasons for imposing a different

sentence, however, the judge will normally go further and explain why he has

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rejected those arguments.” Id. at 357. However, he is not required to do so. In

finding a sentence at the high end of the Guideline range to be reasonable, the

judge weighed the “violence” involved in the crime, the need for “deterrence,” and

the defendant’s need for “medical care.” Although the judge did not specifically

discuss Dr. Mays’s report, he thoroughly explained why he rejected defendant’s

arguments for a shorter prison sentence. No error occurred at sentencing.

The judgment of the district court is AFFIRMED.

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