USA V. ENRIQUE MERCADO-CUEN, No. 13-50074 (9th Cir. 2014)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN 14 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-50074 D.C. No. 3:11-cr-05687-AJB-2 v. MEMORANDUM* ENRIQUE MERCADO-CUEN, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding Submitted January 8, 2014** Pasadena, California Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges. 1. The district court did not plainly err by admitting testimony concerning the threat made against one of the government s witnesses. It s true, as MercadoCuen argues, that he did not make the threat himself. But Mercado-Cuen did make * 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). Page 2 of 2 statements suggesting that he had encouraged or approved of the threat, and those statements were relevant because they tended to show consciousness of guilt. See United States v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995). The probative value of the testimony outweighed any danger of unfair prejudice. Evidence of an attempt to intimidate a witness is second only to a confession in terms of probative value regarding consciousness of guilt. Id. 2. The district court did not abuse its discretion at sentencing. Contrary to Mercado-Cuen s argument, the court did not attach a presumption of reasonableness to the Guidelines range or give undue weight to that range. See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc). Instead, the court repeatedly stated that the base offense level was advisory and properly treated the Guidelines range as a baseline, and moved from there to tailor a sentence to the individualized offense and offender characteristics. Id. AFFIRMED.
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