FILED
NOT FOR PUBLICATION DEC 28 2011
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. 10-50466
Plaintiff - Appellee, D.C. No. 3:09-cr-02194-IEG-1
v. MEMORANDUM *
MOISES SALAS PALACIOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted December 5, 2011 **
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Moises Salas Palacios was convicted for importing cocaine and possession
with intent to distribute the same. He was sentenced to the mandatory minimum of
*
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).
120 months’ imprisonment and now appeals his conviction and sentence. We
affirm.
Palacios first argues that he is entitled to a new trial because the district
court upheld two of the prosecutor’s three strikes to Hispanic jurors on the venire,
in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Steps one and two of the
Batson framework are not in dispute. Only step three of the Batson inquiry is at
issue and thus the sole question is whether the trial court clearly erred in
concluding that there was no purposeful discrimination. Tolbert v. Page, 182 F.3d
677, 680 n.5 (9th Cir. 1999). We conclude that the district judge did not clearly err.
The prosecutor attempted to strike all three Hispanic jurors, P.L., A.G., and
D.A. The district court sustained the objection to excusing P.L. and she was seated
on the jury.
The prosecutor’s reasons for striking A.G. were: (1) he had a close relative
who was convicted of importing drugs and A.G. was uncertain whether his
relative’s experiences with the criminal justice system would influence him in this
case; and (2) he was a professor whom prosecutors often disfavor as jurors. Both
are valid, race-neutral reasons for challenging a juror.
The prosecutor’s reasons for striking D.A. were: (1) his lack of life
experience based on his age and status as a student; (2) his prior jury service; and
(3) his overall disheveled look, particularly his goatee and long hair. We afford
considerable deference to a trial judge’s findings, particularly where, as in this
case, she has sustained the challenge to P.L., rejecting the prosecutor’s
questionable reasons. We cannot say that the district court judge clearly erred in
holding that the prosecutor’s justifications for the strikes of A.G. or D.A. were
genuine “rather than pretexts invented to hide purposeful discrimination.” Green
v. LaMarque, 532 F.3d 1028, 1030 (9th Cir. 2008).
Palacios also argues that the mandatory minimum sentence he received
violates the Eighth Amendment and is discriminatory in violation of his Fifth
Amendment right to equal protection and due process. Palacios’ arguments are
foreclosed under the law of our Circuit. See United States v. Labrada-Bustamante,
428 F.3d 1252, 1265 (9th Cir. 2005) (“Mandatory minimum sentencing schemes
have been consistently upheld against constitutional challenge.”) (quoting United
States v. Wilkins, 911 F.2d 337, 339 (9th Cir.1990)); United States v. Kidder, 869
F.2d 1328, 1334 (9th Cir. 1989) (rejecting due process argument that a statutory
mandatory minimum sentence is unconstitutional); United States v. Kinsey, 843
F.2d 383 (9th Cir. 1988) (overruled on other grounds by United States v. Nordby,
225 F.3d 1053, 1059 (9th Cir. 2000)) (rejecting Eighth Amendment and Equal
Protection challenges to 21 U.S.C. § 841(b)).
AFFIRMED.