United States v. Dalia Ildefonso

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2018
• Docket: 16-50390
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 16 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50390

Plaintiff-Appellee, D.C. No. 3:16-cr-00679-LAB-1 v.

DALIA MARINA ILDEFONSO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted March 5, 2018 Pasadena, California

Before: REINHARDT and NGUYEN, Circuit Judges, and SETTLE,** District Judge.

1. The government did not commit misconduct in closing argument. It properly

stated and addressed the required elements of conspiracy and then described the

circumstantial evidence that supported conviction. See United States v. Kojayan, 8

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. F.3d 1315, 1321 (9th Cir. 1993) (“When a prosecutor asks jurors to deduce a

defendant’s guilt from circumstantial evidence, for example, he’s urging them to

take a leap beyond the record, to use their common sense in reaching a conclusion

not explicitly spelled out by the evidence. This is the very essence of jury

summation.”).

2. The district court did not plainly err by using the preponderance standard to

determine the amount of methamphetamine attributable to Ildefonso at sentencing.

We agree with Ildefonso that the reasoning in United States v. Harrison-Philpot,

978 F.2d 1520 (9th Cir. 1992), is inapposite to her case. However, because of our

precedent, United States v. Flores, 725 F.3d 1028, 1035 (9th Cir. 2013) (citing

United States v. Rosacker, 314 F.3d 422, 429-30 (9th Cir. 2002) (holding the clear

and convincing standard that applies to cases where a sentencing factor has an

extremely disproportionate effect on the sentence does not apply to drug quantity

approximations)), we cannot conclude that any error is “so clear-cut, so obvious,

[that] a competent district judge should be able to avoid it without benefit of

objection,” United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007).

AFFIRMED.