NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10036
Plaintiff - Appellee, D.C. No. 2:11-cr-01622-DGC-5
v.
MEMORANDUM*
DOMINGO AGUSTIN-SIMON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted November 16, 2015**
San Francisco, California
Before: THOMAS, Chief Judge and IKUTA and HURWITZ, Circuit Judges.
After a jury trial, Domingo Agustin-Simon was convicted of conspiracy to
commit hostage taking, hostage taking, bringing in and harboring illegal aliens, and
brandishing a firearm during a crime of violence. He appeals from the convictions
*
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).
and challenges the concurrent sentences imposed by the district court for conspiracy
to commit hostage taking and hostage taking. We affirm.
1. The district court did not abuse its discretion in admitting testimony that
Agustin-Simon sexually assaulted a hostage. The court correctly found that this
testimony was relevant to show the victim was held against her will. The court
reasonably concluded that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice, and gave an appropriate limiting
instruction as to the jury’s use of the evidence. See Fed. R. Evid. 403; see also
United States v. Wahchumwah, 710 F.3d 862, 870–71 (9th Cir. 2012); United States
v. Rabanales-Casia, 586 F. App’x 690, 691 (9th Cir. 2014) (rejecting a similar
argument by Agustin-Simon’s co-defendant). Even if we review for abuse of
discretion rather than plain error, the district court did not abuse its discretion in
concluding that the testimony was not inadmissible Rule 404(b)(1) “other act”
evidence offered to show Agustin-Simon’s character, but rather “part and parcel of
the criminal conduct at issue.”
2. We review the district court’s sentencing decision for abuse of discretion,
see Gall v. United States, 552 U.S. 38, 51 (2007), and find none. The district court
carefully considered all relevant factors, and imposed a below-Guidelines sentence.
See United States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (“[A] correctly
calculated Guidelines sentence will normally not be found unreasonable on
2
appeal.”). The sentences did not create “unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.”
See 18 U.S.C. § 3553(a)(6).
AFFIRMED.
3