FILED
NOT FOR PUBLICATION FEB 16 2012
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. 08-10336
Plaintiff - Appellee, D.C. No. 1:05-cr-00482-OWW
v.
MEMORANDUM *
RON VAUGHN,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted January 18, 2012
San Francisco, California
Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.
Ron Vaughn appeals his conviction and sentence following a jury trial.
Because the parties are familiar with the factual and procedural history of this case,
we do not repeat it here. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court concluded that there was probable cause to issue a search
warrant, and its conclusion, following an extensive Franks hearing, was not in
error. The warrant was more extensive than merely listing the file titles and
provided sufficient information to support the district court’s conclusion that there
was “a fair probability” that the officials might discover evidence of criminal
activity. See United States v. Gourde, 440 F.3d 1065, 1073 (9th Cir. 2006) (en
banc) (noting that Illinois v. Gates, 462 U.S. 213 (1983), does not compel the
government to provide more facts than necessary to show a “fair probability” that
the defendant has committed a crime).
It was also within the district court’s discretion to permit the government’s
cross-examination during the Franks hearing. See United States v. Vasquez, 858
F.2d 1387, 1392 (9th Cir. 1988) (citation omitted). Because the direct testimony
put at issue statements in the search warrant and statements that may have been
made to the police, the district court did not abuse its discretion in permitting
cross-examination on these topics. In addition, Vaughn chose to take the stand,
and topics relating to his “credibility [were] properly subject to exploration.”
Arredondo v. Ortiz, 365 F.3d 778, 783 (9th Cir. 2004).
The district court did not abuse its discretion in admitting Vaughn’s prior
statement under Federal Rule of Evidence 404(b). This statement constituted a
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party admission and was not hearsay. Fed. R. Evid. 801(d)(2). The district court
concluded that the proffered evidence went to a material issue and was offered to
show “intent, knowledge or absence of mistake.” Also, because we have declined
to adopt an inflexible rule regarding remoteness in the context of Rule 404(b),
United States v. Vo, 413 F.3d 1010, 1019 (9th Cir. 2005), the district court did not
abuse its discretion in concluding that the temporal link was not too attenuated, nor
in finding the proffered evidence similar enough to be probative of the charged
conduct. Any claimed prejudicial effect was limited through a protective
admonition at the time the evidence was presented, as well as prior to jury
deliberation. United States v. Hadley, 918 F.2d 848, 852 (9th Cir. 1990).
The district court did not violate the separation of powers doctrine by
applying sentencing enhancements promulgated by Congress, where the
Sentencing Commission was required to incorporate the enhancements without
first conducting rigorous empirical research and analysis. Congress retains the
ultimate authority over the Guidelines, and, consistent with that authority, may
require the Commission to implement its directives. See United States v.
Henderson, 649 F.3d 955, 963 n.3 (9th Cir. 2011) (“That Congress has the
authority to issue sentencing directives to the Commission is established beyond
peradventure.”).
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Despite the district court’s statement that “as a coordinate branch of
government, [it did not] make the law. . . . And [it did] owe comity and respect to
the legislative branch of government,” we conclude that the district court
understood, appreciated, and exercised its discretion under Kimbrough v. United
States, 128 S. Ct. 558 (2007), to deviate from the Sentencing Guidelines. The
district court reiterated that it was imposing a sentence it believed to be sufficient
and no more than necessary to impose just punishment.
The penultimate challenge—that the sentence was substantively
unreasonable—also fails. We review the substantive reasonableness of sentences
for abuse of discretion and must give due deference to the district court’s decision.
Gall v. United States, 128 S. Ct. 586, 597 (2007). The district court followed the
order of analysis we laid out in United States v. Carty, 520 F.3d 984, 991-92 (9th
Cir. 2008) (en banc). Acknowledging that the Sentencing Guidelines are advisory
and must be calculated and applied as one sentencing factor, the district court first
determined the appropriate Guidelines calculation. It then considered all of the 18
U.S.C. § 3553(a) factors, and imposed a sentence at the lower end of the
Guidelines range. In light of the circumstances, the sentence was not substantively
unreasonable.
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Finally, we do not address the claims that trial counsel provided ineffective
assistance. These claims normally should be raised in habeas proceedings and the
record before us is not sufficiently developed to permit review and determination
of this issue. United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).
AFFIRMED.
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