                                                                           FILED
                           NOT FOR PUBLICATION                              APR 02 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-10024

              Plaintiff - Appellee,              D.C. No. 3:10-cr-08089-GMS-1

  v.

NATHAN LAVENDER,
                                                 MEMORANDUM *
              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                    G. Murray Snow, District Judge, Presiding

                       Argued and Submitted March 15, 2013
                             San Francisco, California

Before: NOONAN, FISHER, and NGUYEN, Circuit Judges.

       Nathan Lavender appeals his conviction and sentence for assault with a

dangerous weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3), and assault by

striking, beating, or wounding, in violation of 18 U.S.C. §§ 1153 and 113(a)(4).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Lavender contends that the district court erred in denying his motion to

dismiss the indictment. In denying the motion, the district court made factual

findings, which we review for clear error. See United States v. Marguet-Pillado,

560 F.3d 1078, 1081 (9th Cir. 2009).

      Lavender claims that the government breached its oral promise not to

prosecute him in exchange for his testimony as a witness in an unrelated

prosecution of Nathan Manuelito. At the evidentiary hearing on the motion to

dismiss, Lavender and his wife testified that agent Auggie Belvado (“Belvado”)

promised to “push off” Lavender’s case and “help [Lavender] out” if he testified in

the Manuelito trial. They further testified that the Assistant United States Attorney

(“AUSA”) agreed to Lavender’s request to have his case “stay tribal” and “not go

federal.”

      However, both agent Belvado and the AUSA denied promising Lavender

leniency in exchange for his testimony. At the time of the Manuelito trial,

Lavender’s case had not been submitted to the AUSA for prosecution. Agent

Belvado interviewed Lavender regarding his case after the Manuelito trial ended,

and the transcript of the recorded interview confirms that agent Belvado told

Lavender that his recorded statements would be submitted to the prosecutor. The

transcript contains no evidence of any promise regarding non-prosecution.


                                          2
      After evaluating the conflicting evidence at the hearing, the district court

found that there was no oral cooperation agreement in which the government

promised not to prosecute Lavender in exchange for his testimony in the Manuelito

trial. The district court’s finding was not clearly erroneous. See Lewis v. Ayers,

681 F.3d 992, 999 (9th Cir. 2012) (“Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

(internal quotation marks omitted)); United States v. Elliott, 322 F.3d 710, 715 (9th

Cir. 2003) (“[W]e pay special deference to a trial court’s credibility findings.”).

Therefore, the district court’s denial of the motion to dismiss was proper.1

      2. Lavender contends that the evidence was insufficient to convict him of

assault with a dangerous weapon. Specifically, he claims that at the time of the

assault, he was so intoxicated that he could not have formed the specific intent to

do bodily harm. “[V]iewing the evidence in the light most favorable to the


      1
          Lavender also briefly suggests in his Opening Brief that the government
committed misconduct by failing to advise him of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), during the trial preparation of the Manuelito case.
Lavender’s failure to address how the government violated his Miranda rights
constitutes waiver of this issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259
(9th Cir. 1996) (“Issues raised in a brief that are not supported by argument are
deemed abandoned.”). Even if considered on the merits, no Miranda warnings
were required because he was not subjected to custodial interrogation during the
interviews. See Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam)
(stating that the protections outlined in Miranda apply only when a suspect is
subjected to custodial interrogation).

                                           3
prosecution,” Jackson v. Virginia, 443 U.S. 307, 319 (1979), a rational jury could

reasonably conclude that the evidence was sufficient to convict Lavender despite

his alcohol consumption, based on his ability to: (1) follow victim Larrell Tessay’s

car to the location where they had their first altercation; (2) drive to the second

location; (3) grab a knife and stab Tessay; and (4) flee the scene after the stabbing.

The jury received the intoxication defense instruction, Ninth Circuit Model

Criminal Jury Instruction No. 6.9, which allowed it to find that Lavender’s

intoxication negated the requisite specific intent. However, the jury clearly

rejected that defense based on the evidence. We must give deference to that

verdict. See United States v. Croft, 124 F.3d 1109, 1125 (9th Cir. 1997) (stating

that in reviewing sufficiency of evidence, “we are powerless to question a jury’s

assessment of witnesses’ credibility”); United States v. Kaipat Pelisamen, 641 F.3d

399, 409 n.6 (9th Cir. 2011) (“[W]e must give great deference to the jury verdict




                                           4
and must affirm if any rational trier of fact could have found the evidence

sufficient.” (internal quotation marks omitted)).2

      3. Finally, Lavender challenges the district court’s imposition of a

five-level sentencing enhancement, pursuant to U.S. Sentencing Guidelines

Manual § 2A2.2(b)(3)(B) (2011), based on the serious bodily injury sustained by

Tessay. As a preliminary matter, the parties dispute whether the government was

required to prove the facts supporting the enhancement by a preponderance of the

evidence or by a clear and convincing evidence standard. See United States v.

Armstead, 552 F.3d 769, 776 (9th Cir. 2008) (noting that while a district court

normally uses a preponderance of the evidence when finding facts at sentencing,

where a sentencing factor has an extremely disproportionate effect on the sentence

relative to the offense of conviction, the district court must find the facts by a clear

and convincing standard of proof). We need not resolve this dispute because we

conclude that, under either standard, the evidence clearly supports the imposition

of the five-level sentencing enhancement.


      2
          On appeal, Lavender also argues that he acted in self-defense, so the
district court should have entered a directed verdict in his favor. During trial,
Lavender did not argue, nor did he request that the jury be instructed on, self-
defense. Accordingly, we deem this issue waived. See Hockenberry v. United
States, 422 F.2d 171, 173 (9th Cir. 1970) (treating just cause or excuse as a defense
under 18 U.S.C. § 113), and United States v. Fuchs, 218 F.3d 957, 969 (9th Cir.
2000) (holding that affirmative defenses can be waived in criminal cases).

                                            5
      Tessay was stabbed three times—once to his chest and twice to his

abdomen—causing him extreme physical pain. A doctor testified that the stab

wounds nearly injured his internal mammary artery. Tessay was flown by

helicopter to a hospital for surgery and, absent medical treatment, he could have

died. The district court did not clearly err in finding that Tessay sustained serious

bodily injury. See U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n.1(L) (2011)

(“‘Serious bodily injury’ means injury involving extreme physical pain . . . or

requiring medical intervention such as surgery, hospitalization . . . .”).

      AFFIRMED.




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