FILED
NOT FOR PUBLICATION APR 02 2013
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. 12-10024
Plaintiff - Appellee, D.C. No. 3:10-cr-08089-GMS-1
v.
NATHAN LAVENDER,
MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted March 15, 2013
San Francisco, California
Before: NOONAN, FISHER, and NGUYEN, Circuit Judges.
Nathan Lavender appeals his conviction and sentence for assault with a
dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and assault by
striking, beating, or wounding, in violation of 18 U.S.C. §§ 1153 and 113(a)(4).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Lavender contends that the district court erred in denying his motion to
dismiss the indictment. In denying the motion, the district court made factual
findings, which we review for clear error. See United States v. Marguet-Pillado,
560 F.3d 1078, 1081 (9th Cir. 2009).
Lavender claims that the government breached its oral promise not to
prosecute him in exchange for his testimony as a witness in an unrelated
prosecution of Nathan Manuelito. At the evidentiary hearing on the motion to
dismiss, Lavender and his wife testified that agent Auggie Belvado (“Belvado”)
promised to “push off” Lavender’s case and “help [Lavender] out” if he testified in
the Manuelito trial. They further testified that the Assistant United States Attorney
(“AUSA”) agreed to Lavender’s request to have his case “stay tribal” and “not go
federal.”
However, both agent Belvado and the AUSA denied promising Lavender
leniency in exchange for his testimony. At the time of the Manuelito trial,
Lavender’s case had not been submitted to the AUSA for prosecution. Agent
Belvado interviewed Lavender regarding his case after the Manuelito trial ended,
and the transcript of the recorded interview confirms that agent Belvado told
Lavender that his recorded statements would be submitted to the prosecutor. The
transcript contains no evidence of any promise regarding non-prosecution.
2
After evaluating the conflicting evidence at the hearing, the district court
found that there was no oral cooperation agreement in which the government
promised not to prosecute Lavender in exchange for his testimony in the Manuelito
trial. The district court’s finding was not clearly erroneous. See Lewis v. Ayers,
681 F.3d 992, 999 (9th Cir. 2012) (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
(internal quotation marks omitted)); United States v. Elliott, 322 F.3d 710, 715 (9th
Cir. 2003) (“[W]e pay special deference to a trial court’s credibility findings.”).
Therefore, the district court’s denial of the motion to dismiss was proper.1
2. Lavender contends that the evidence was insufficient to convict him of
assault with a dangerous weapon. Specifically, he claims that at the time of the
assault, he was so intoxicated that he could not have formed the specific intent to
do bodily harm. “[V]iewing the evidence in the light most favorable to the
1
Lavender also briefly suggests in his Opening Brief that the government
committed misconduct by failing to advise him of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), during the trial preparation of the Manuelito case.
Lavender’s failure to address how the government violated his Miranda rights
constitutes waiver of this issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259
(9th Cir. 1996) (“Issues raised in a brief that are not supported by argument are
deemed abandoned.”). Even if considered on the merits, no Miranda warnings
were required because he was not subjected to custodial interrogation during the
interviews. See Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam)
(stating that the protections outlined in Miranda apply only when a suspect is
subjected to custodial interrogation).
3
prosecution,” Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational jury could
reasonably conclude that the evidence was sufficient to convict Lavender despite
his alcohol consumption, based on his ability to: (1) follow victim Larrell Tessay’s
car to the location where they had their first altercation; (2) drive to the second
location; (3) grab a knife and stab Tessay; and (4) flee the scene after the stabbing.
The jury received the intoxication defense instruction, Ninth Circuit Model
Criminal Jury Instruction No. 6.9, which allowed it to find that Lavender’s
intoxication negated the requisite specific intent. However, the jury clearly
rejected that defense based on the evidence. We must give deference to that
verdict. See United States v. Croft, 124 F.3d 1109, 1125 (9th Cir. 1997) (stating
that in reviewing sufficiency of evidence, “we are powerless to question a jury’s
assessment of witnesses’ credibility”); United States v. Kaipat Pelisamen, 641 F.3d
399, 409 n.6 (9th Cir. 2011) (“[W]e must give great deference to the jury verdict
4
and must affirm if any rational trier of fact could have found the evidence
sufficient.” (internal quotation marks omitted)).2
3. Finally, Lavender challenges the district court’s imposition of a
five-level sentencing enhancement, pursuant to U.S. Sentencing Guidelines
Manual § 2A2.2(b)(3)(B) (2011), based on the serious bodily injury sustained by
Tessay. As a preliminary matter, the parties dispute whether the government was
required to prove the facts supporting the enhancement by a preponderance of the
evidence or by a clear and convincing evidence standard. See United States v.
Armstead, 552 F.3d 769, 776 (9th Cir. 2008) (noting that while a district court
normally uses a preponderance of the evidence when finding facts at sentencing,
where a sentencing factor has an extremely disproportionate effect on the sentence
relative to the offense of conviction, the district court must find the facts by a clear
and convincing standard of proof). We need not resolve this dispute because we
conclude that, under either standard, the evidence clearly supports the imposition
of the five-level sentencing enhancement.
2
On appeal, Lavender also argues that he acted in self-defense, so the
district court should have entered a directed verdict in his favor. During trial,
Lavender did not argue, nor did he request that the jury be instructed on, self-
defense. Accordingly, we deem this issue waived. See Hockenberry v. United
States, 422 F.2d 171, 173 (9th Cir. 1970) (treating just cause or excuse as a defense
under 18 U.S.C. § 113), and United States v. Fuchs, 218 F.3d 957, 969 (9th Cir.
2000) (holding that affirmative defenses can be waived in criminal cases).
5
Tessay was stabbed three times—once to his chest and twice to his
abdomen—causing him extreme physical pain. A doctor testified that the stab
wounds nearly injured his internal mammary artery. Tessay was flown by
helicopter to a hospital for surgery and, absent medical treatment, he could have
died. The district court did not clearly err in finding that Tessay sustained serious
bodily injury. See U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n.1(L) (2011)
(“‘Serious bodily injury’ means injury involving extreme physical pain . . . or
requiring medical intervention such as surgery, hospitalization . . . .”).
AFFIRMED.
6