                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 10 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   17-50330

                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             3:16–cr–00730–H

MARTEL VALENCIA-CORTEZ,
                                                MEMORANDUM*
                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Marilyn L. Huff, District Judge, Presiding

                    Argued and Submitted November 14, 2018
                              Pasadena, California

Before: PAEZ, PARKER, ** and CLIFTON, Circuit Judges.

      Martel Valencia-Cortez (“Valencia”) appeals his judgment of conviction for

assault on a federal officer with a deadly weapon and bringing noncitizens into the

United States for financial gain. See 18 U.S.C. § 111; 8 U.S.C. § 1324(a)(2)(B)(ii).



      *
             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 United States Court of Appeals for the Second Circuit, sitting by designation.
                           Eyewitness Identification Instruction

      The District Court denied Valencia’s request for a Ninth Circuit pattern

eyewitness identification instruction (the “Model Eyewitness Instruction”) and, in

doing so, did not abuse its discretion. In its final jury instructions, the District Court

discussed Valencia’s identification defense and provided a general witness

credibility instruction.     Further, the District Court permitted Valencia to elicit

comprehensive expert testimony on, among other things, eyewitness memory,

memory for the details of events, the ability to pick faces, and suggestibility.

Counsel for Valencia extensively argued the identification defense to the jury based

on this testimony.     The jury was thus alerted to potential weaknesses in the

Government’s eyewitness identification evidence. Accordingly, we see no abuse of

discretion in the District Court’s refusal to give the Model Eyewitness Instruction.

      While we see no abuse of discretion, we are troubled by the comment to the

Model Eyewitness Instruction that recommends “against the giving of an eyewitness

identification instruction.” Manual of Model Criminal Jury Instructions for the

District Courts of the Ninth Circuit § 4.11 cmt. (2010) [hereinafter MMCJI]. There

is now a robust body of scientific research and evidence that highlights the unique

perils of eyewitness identification testimony as “one of the greatest causes of

erroneous convictions.” Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–45


                                            2
(3d Cir. 2016).

      The Supreme Court has acknowledged the fallibility of eyewitness testimony

and characterized eyewitness instructions as due process safeguards that “warn the

jury to take care in appraising identification evidence.” Perry v. New Hampshire,

565 U.S. 228, 246 (2012); see also id. at 246 n.7 (citing the Ninth Circuit Model

Eyewitness Instruction). Other Circuits have also encouraged the giving of such

instructions, recognizing the inherent dangers of this type of evidence. United States

v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United States v. Holley, 502 F.2d 273,

277 (4th Cir. 1974); United States v. Telfaire, 469 F.2d 552, 556–57 (D.C. Cir.

1972). Further, we have previously suggested that the need for heightened jury

instructions should correlate with the amount of corroborating evidence. See United

States v. Masterson, 529 F.2d 30, 32 (9th Cir. 1976) (noting that “[i]n both Holley

and Telfaire a single eyewitness was the only incriminating evidence against the

defendant”). Without disagreeing that courts are given discretion in fashioning jury

instructions, we encourage the Jury Instructions Committee to reassess their

comment as it is inconsistent with legal precedent and growing scientific evidence.

      For similar reasons, we are also troubled by the following language in the

comment to the Model Eyewitness Instruction:

      The Ninth Circuit has approved the giving of a comprehensive
      eyewitness jury instruction where the district court has determined that
      proffered expert witness testimony regarding eyewitness identification
      should be excluded.

                                          3
MMCJI § 4.11 cmt. This comment seems to suggest that a district court may either

give the Model Eyewitness Instruction or allow expert witness testimony, but not

both.     Again, because of the particularly unreliable nature of eyewitness

identification evidence, we encourage the Jury Instructions Committee to make clear

that it is within a court’s sound discretion to provide both safeguards if the facts and

circumstances of the case so require.

                             Valencia’s Arrest in Mexico

        The District Court denied Valencia an evidentiary hearing and excluded

evidence at trial concerning the circumstances of his arrest in Mexico by Mexican

authorities and his transportation to the San Ysidro Port of Entry. The District Court

reasoned that evidence related to Valencia’s arrest could be remote and confusing

for a jury because of the length of time between the assault charge in the indictment

and Valencia’s arrest. The District Court also determined that no direct connection

existed between the arrest and the charges in the indictment, limiting the overall

relevance of evidence related to the arrest. Considering this reasoning, the District

Court acted within in its discretion in excluding evidence of the arrest.

                    Deadly or Dangerous Weapon Enhancement

        The District Court instructed the jury that a rock is a deadly or dangerous

weapon if it is used in a way that is capable of causing death or serious bodily injury.

Valencia argued that an object can constitute a deadly or dangerous weapon only if

                                           4
it is likely to cause death or serious bodily injury—a heightened standard of

probability. Subjecting this contention to plain error review, we find none.

      United States v. Smith, 561 F.3d 934, 939 (9th Cir. 2009) (en banc), is

controlling precedent on dangerous weapon enhancements such as the one in this

case. In the portion of our opinion in Smith discussing the legal standard, we said

that “[a]n object is a dangerous weapon . . . if it is . . . used in a manner likely to

endanger life or inflict great bodily harm.” 561 F.3d at 939 (emphasis added).

However, assuming that the District Court committed error, such an error would not

be plain because the Smith decision itself uses the “capable” language at other points

in the opinion.1 See id. at 940.

      Valencia also challenges the sufficiency of the evidence as to the assault with

a dangerous weapon charge. While evidence of the assault with the rock was by no

means conclusive, a rational jury could have convicted Valencia based on the

evidence adduced by the Government as to the size of the rock, the way in which it


1
        While the holding of Smith suggests that the correct instruction employs the
term “likely,” cases following Smith have been inconsistent, with some using
“likely” and others “capable.” Compare United States v. Anchrum, 590 F.3d 795,
802 (9th Cir. 2009), with United States v. Rocha, 598 F.3d 1144, 1154 (9th Cir.
2010). Moreover, the Ninth Circuit Manual of Model Criminal Jury Instructions
still employs the “capable” language. See MMCJI § 8.4. Because of this confusion,
any error is not “so clear-cut” or “so obvious” that the District Court could have
avoided it without objection. See United States v. Gonzalez-Aparicio, 663 F.3d 419,
428 (9th Cir. 2011). The Court should address this confusion in a case where it
would not be limited to plain error review, given the significant difference between
“capable” and “likely.”

                                          5
was thrown, and the physical effects of the rock’s impact. Thus, the evidence was

sufficient to allow a reasonable juror to convict.

                                 Grouping Increase

      The District Court applied a 6-point enhancement to Valencia’s sentence for

illegally bringing in noncitizens, resulting in an adjusted offense level of 20. The

Government has conceded that the offense level should be 17. Specifically, it

recommended only a 3-point enhancement to the base offense level for bringing in

6 to 24 noncitizens instead of the Presentence Report’s recommendation of a 6-point

enhancement for bringing in 28 noncitizens. The Government explained that it did

not believe there was sufficient evidence presented at trial or at any other time that

Valencia was involved in bringing in 28 individuals.

      The District Court applied a 1-point grouping increase pursuant to the

Sentencing Guidelines because the adjusted offense level of the assault count—26—

and the erroneous adjusted offense level of the illegal bringing in of noncitizens

count—20—were within six levels of one another. See U.S.S.G. § 3D1.4. However,

the District Court should not have applied the 1-point grouping increase because the

correct adjusted offense level for illegally bringing in noncitizens—17—was 9

levels less serious than the adjusted offense level for the assault count—26—and

therefore should have been disregarded. Id. An offense level of 26 corresponds to

a Sentencing Guidelines range of 78 to 97 months’ imprisonment, as opposed to the


                                          6
range for an offense level of 27, which is 87 to 108 months’ imprisonment, and

which was used by the District Court to sentence Valencia.

      On appeal, the Government concedes that there was an error. This error was

plain because it contravened the direct instructions of the Sentencing Guidelines to

“[d]isregard any [count] that is 9 or more levels less serious than the [count] with

the highest offense level.” Id. Moreover, a sentencing error such as this affects

Valencia’s substantial rights and seriously undermines the fairness, integrity, and

public reputation of judicial proceedings. United States v. Bonilla-Guizar, 729 F.3d

1179, 1188 (9th Cir. 2013). Thus, we vacate Valencia’s sentence and remand to the

District Court for resentencing.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                         7
