United States v. George Reyes

34 F.3d 1075, 1994 U.S. App. LEXIS 32160, 1994 WL 424286

Opinion

34 F.3d 1075

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
George REYES, Defendant-Appellant.

No. 93-50501.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 2, 1994.*
Decided Aug. 11, 1994.

Before: O'SCANNLAIN and T.G. NELSON, Circuit Judges; MERHIGE,** District Judge.

MEMORANDUM***

* Reyes asserts that the various references to his "prior legal problems" constituted improper admission of bad character evidence under Federal Rule of Evidence 404(b). "Other act" evidence is admissible in conspiracy cases to show the background and development of the conspiracy. United States v. Jones, 982 F.2d 380, 382 (9th Cir.1992). Further, Reyes has failed to demonstrate how any prejudicial effect of this evidence could have outweighed its probative value.

II

The district court's denial of Reyes' motion for continuance was not arbitrary or unreasonable since Reyes failed to establish that Dolores would in fact have testified after his sentence had been imposed. United States v. Paris, 827 F.2d 395, 399 n. 2 (9th Cir.1987); United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir.1980).

III

Reyes claims that he was denied effective assistance of counsel. We disagree. Reyes has shown neither that his attorney's performance was "outside the wide range of professionally competent assistance" nor that there was prejudice. Strickland v. Washington, 466 U.S. 668, 687-90 (1984).

IV

Reyes contends that the district court erred in sentencing. We disagree. First, the district court never imposed the two-point increase for obstruction of justice recommended in the presentence report. Second, the district court could properly consider that Reyes was an INS inspector. United States v. Cervantes-Valenzuela, 931 F.2d 27, 28-29 (9th Cir.1991) (per curiam) (citing 18 U.S.C. Sec. 3661; U.S.S.G. Sec. 1B1.4). Third, since the district court properly applied the Sentencing Guidelines, "the challenge to the sentence on the basis of disparity must fail." United States v. Taylor, 991 F.2d 533, 536 (9th Cir.), cert. denied, 114 S.Ct. 170 (1993).

AFFIRMED.

* The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit R. 34-4

** The Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation

*** 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 R. 36-3