United States v. Correia

60 F. App'x 177

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2003
• Docket: No. 01-10502; D.C. No. CR-99-00015-DAE
• Status: Published

Opinion

MEMORANDUM

**

Defendant Joseph S. Correia appeals from his convictions, after a jury trial, for conspiracy to distribute, and distribution of, crystal methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and for violating 18 U.S.C. § 922(g) by possessing firearms after having been convicted of a felony. We affirm.

1. The conviction for violating 18 U.S.C. § 922(g) does not violate the Ex Post Facto Clause because Defendant’s illegal conduct, the possession of firearms, occurred long after 18 U.S.C. § 922(g) took effect. See United States v. Hancock, 231 F.3d 557, 565 (9th Cir.2000) (upholding a paragraph of § 922(g) against due process challenges); United States v. ArzateNunez, 18 F.3d 730, 733 (9th Cir.1994) (stating test for ex post facto analysis).

2. Evidence of Defendant’s 1959 burglary conviction was admissible to prove his status as a felon, which is an element the government had to prove under 18 U.S.C. § 922(g), because Defendant refused to stipulate to his status as a felon. See United States v. Lloyd, 981 F.2d 1071, 1072-73 (9th Cir.1992) (per curiam) (allowing government to prove predicate felonies under § 922(g)(1) when the defendant refused to stipulate).

3. The prosecutor’s closing argument was not improper. A statement that a witness’ testimony was “uncontradicted” or “unrefuted” did not, without more, suggest to the jury that it should draw an adverse inference from Defendant’s failure to testify-

4. The district court did not clearly err when it found that Defendant was not entitled to a downward adjustment for acceptance of responsibility. See United States v. Innie, 7 F.3d 840, 848 (9th Cir.1993).

5. The district court gave individualized oral and written reasons for selecting a sentence at the middle of the guideline range, relying on the large quantities of drugs involved and the extensive profits Defendant made in his drug-trafficking enterprise. Defendant does not challenge the propriety of the range itself.

6. We decline to address Defendant’s claims of ineffective assistance of counsel because there is not an adequate record before us; he may raise them collaterally. See United States v. Rewald, 889 F.2d 886, 859 (9th Cir.1989).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.