United States v. Chavez-Cuevas

158 F. App'x 888

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2005
• Docket: No. 02-30213; D.C. No. CR-00-00033-BLW
• Status: Published

Opinion

MEMORANDUM

***

Martin Chavez-Cuevas appeals a jury conviction and 360-month sentence imposed for conspiracy to distribute, and possess with intent to distribute, methamphetamine.

Chavez-Cuevas requests reversal of his conviction on the ground that the court reporter failed to transcribe sidebar conversations. “tWjhile court reporters are required by the Court Reporters Act, 28 U.S.C. § 753(b)(1) (1982), to record verbatim all proceedings in open court, their failure to do so does not require a per se rule of reversal.” United States v. Carrillo, 902 F.2d 1405, 1409 (9th Cir.1990). Rather, “the appellant must demonstrate that the missing portion of the transcript specifically prejudices his appeal before relief will be granted.” Id. (citation omitted). Prejudice is not assumed simply because appellant has new counsel on appeal, United States v. Antoine, 906 F.2d 1379, 1381 (9th Cir.1990), or because he claims “he cannot know of ‘potential unknown errors.’ ” United States v. Anzalone, 886 F.2d 229, 232 (9th Cir.1989).

Chavez has failed to articulate any specific prejudice suffered as a result of the omitted sidebars. Given the circumstances of this case, a remand will not improve the record for purposes of identifying specific prejudice.

The judgment of the district court is AFFIRMED in all respects except for a limited REMAND for possible resentencing under United States v. Ameline, 409 F.3d 1073 (9th Cir.2005).

xhiS disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.