                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 15 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10636

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00474-WBS

  v.
                                                 MEMORANDUM*
BEHROOZ BADIE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   William B. Shubb, District Judge, Presiding

                          Submitted December 8, 2014**
                            San Francisco, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Gloria M. Navarro, Chief District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
      Defendant-Appellant Behrooz Badie appeals the district court’s entry of

judgment and imposition of sentence. We have jurisdiction under 18 U.S.C.

§ 1291, and affirm.

      We reject Defendant-Appellant’s argument that the trial court abused its

discretion by denying Defendant-Appellant’s motion to exclude Agent

Sommercamp’s testimony. The trial court did not commit error under United

States v. Curtin, 489 F.3d 935, 957–58 (9th Cir. 2007) (en banc), because the FBI

302s at issue were not proffered or received as evidence. Additionally, “[i]ssues of

credibility are to be resolved by the jury, not the trial court.” United States v.

Evans, 728 F.3d 953, 964 (9th Cir. 2013) (quoting Rainey v. Conerly, 973 F.2d

321, 326 (4th Cir. 1992)) (internal quotation marks omitted).

      We likewise reject Defendant-Appellant’s claim that Judge Garcia

committed plain error by failing to recuse himself. Judge Garcia did not “display a

deep-seated favoritism or antagonism that would make fair judgment impossible.”

Liteky v. United States, 510 U.S. 540, 555 (1994). At most, Judge Garcia’s actions

and comments were permissible “expressions of impatience, dissatisfaction,

annoyance, and even anger.” Id. at 555–56.

      Finally, we reject Defendant-Appellant’s claim that the trial court abused its

discretion by denying Defendant-Appellant’s motion for continuance of sentence


                                            2
proceedings. Defendant-Appellant was not diligent in readying his defense prior to

the date of sentencing; it is unlikely that the need for the continuance would have

been met if the continuance had been granted; the continuance would have

inconvenienced the trial court; and Defendant-Appellant was not prejudiced by the

denial of the motion. See United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.

1985).

      AFFIRMED.




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