United States v. Elishay Banks

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2021
• Docket: 20-50026
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50026

Plaintiff-Appellee, D.C. No. 18CR1228-BEN

v. MEMORANDUM* ELISHAY BANKS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued November 17, 2021 Pasadena, California

Before: WARDLAW, PARKER, ** and HURWITZ, Circuit Judges.

Elishay Banks was convicted of conspiring to import methamphetamine,

importing methamphetamine, and importing marijuana, and sentenced to 90

months incarceration. 21 U.S.C. §§ 952, 960, 963. She appeals her convictions on

all counts as well as her sentence, arguing that (1) there was insufficient evidence

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. to support the convictions, (2) the district court erred at sentencing by failing to

grant downward adjustments for a minor role and for acceptance of responsibility,

and (3) she received ineffective assistance of counsel. We affirm her convictions

and sentence, and we do not reach her ineffective assistance of counsel claim.

1. The evidence was sufficient to convict Banks on each count. Banks

was arrested attempting to enter the United States. At the time of her arrest, a large

quantity of narcotics—including 42 pounds of methamphetamine—was found

secreted in her vehicle. A rational jury could infer knowledge from her possession

of a large quantity of drugs hidden in a car. United States v. Diaz-Cardenas, 351

F.3d 404, 407 (9th Cir. 2003); see also United States v. Barbosa, 906 F.2d 1366,

1368 (9th Cir. 1990) (“[M]ere possession of a substantial quantity of narcotics is

sufficient to support an inference that a defendant knowingly possessed the

narcotics.”). Banks also made misleading and untruthful statements to the arresting

agents, another fact from which a jury may infer knowledge. See United States v.

Angwin, 271 F.3d 786, 797 n.2 (9th Cir. 2001) (“Guilty intent can be inferred from

the defendant’s conduct . . . such as . . . lying or giving inconsistent statements to

government agents . . . .”), rev’d on other grounds, United States v. Lopez, 484

F.3d 1186 (9th Cir. 2007) (en banc). Based on this evidence, as well as the other

evidence presented at trial (such as Banks’s text message records), we conclude

that a rational jury could have concluded that the government had proved the

2 elements of the crimes for which she was convicted. See United States v. Doe, 842

F.3d 1117, 1119 (9th Cir. 2016). Accordingly, we affirm each of Banks’s

convictions.

2. We need not decide whether the district court erred in failing to grant

downward adjustments for a minor role or for acceptance of responsibility. The

court adequately explained the reasons why it would have imposed the same

sentence even if it had granted the adjustments Banks sought. Assuming arguendo

that the district court might have erred, any such error was harmless. See Molina-

Martinez v. United States, 136 S.Ct. 1338, 1346 (2016) (indicating harmless error

exists when “the district court thought the sentence it chose was appropriate

irrespective of the Guidelines range”). Consequently, we affirm the sentence.

3. We decline to review Banks’s appeal based on her claim of ineffective

assistance of counsel. As a general rule, we do not review challenges to the

effectiveness of counsel on direct appeal, which are better left to proceedings

brought under 28 U.S.C. § 2255. United States v. Moreland, 622 F.3d 1147, 1157

(9th Cir. 2010). Challenge by way of a habeas process is preferable because it

permits the defendant to develop a record as to what counsel did, why it was done,

and what, if any, prejudice results. United States v. Laughlin, 933 F.2d 786, 788-

789 (9th Cir. 1991).

The current record is not sufficiently developed to permit us to conclude

3 whether Banks received ineffective assistance of counsel. For those reasons, we

decline to address the claim of ineffective assistance of counsel.

AFFIRMED.