                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 12 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50042

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-0597-LAB
 v.

PEDRO JAVIER ORELLANA,                          MEMORANDUM*

                Defendant-Appellant

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                      Argued and Submitted October 2, 2017
                              Pasadena, California

Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE,** District Judge.

      Defendant-Appellant appeals from his conviction for sexual abuse of an

incapacitated person under 18 U.S.C. § 2242(2)(A) and his sentence of 60 months

of imprisonment followed by ten years of supervised release. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
      1. At trial, Lt. Carrie Bratton, a registered nurse, testified to statements made

by the complaining witness Leticia Alves during a sexual assault nurse’s

examination. Even if these statements were testimonial, Alves testified to the same

facts and was cross-examined. Lt. Bratton’s testimony therefore did not violate

Orellana’s Confrontation Clause rights. See Crawford v. Washington, 541 U.S. 36,

59 n.9 (2004). For the same reason, any error in admitting the hearsay testimony

was harmless. See United States v. Freeman, 498 F.3d 893, 905–06 (9th Cir.

2007); Guam v. Ignacio, 10 F.3d 608, 614 (9th Cir. 1993).

      2. As Alves left the courtroom after testifying, she began crying loudly in the

hallway. She was taken into the bathroom, where she banged on the floor loudly

enough for several jurors to hear. The district court questioned some of the jurors

who witnessed the outburst and the jury as a whole and instructed them to ignore

the interruption. No jurors indicated that they would be unable to decide the case

on the evidence alone. Given our presumption that juries understand and follow

the instructions they are given, see United States v. Escalante, 637 F.2d 1197,

1201‒02 (9th Cir. 1980), the district court did not abuse its discretion in denying a

mistrial. See also Richardson v. Marsh, 481 U.S. 200, 211 (1987).

      3. The evidence was sufficient for a rational fact-finder to conclude beyond a

reasonable doubt that the complaining witness was incapable of appraising the

nature of the sexual act. See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th


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Cir. 2010) (en banc). The jury was entitled to credit Alves’s testimony that she

became conscious after Orellana had already penetrated her. See United States v.

Fasthorse, 639 F.3d 1182, 1184 (9th Cir. 2011).

      4. At trial, recorded excerpts of two interviews of Orellana by government

agents were played for the jury and admitted into evidence subject to a limiting

instruction. When the jury requested the videos during deliberations, the court

decided over defense counsel’s objection to allow the jury to view the videos

unsupervised in the jury room. “The decision to send properly admitted exhibits to

the jury room during deliberations is within the discretion of the trial court.”

United States v. Chadwell, 798 F.3d 910, 914 (9th Cir. 2015). We cannot say that

the district court abused its discretion here.

      5. The district court held that Sentencing Guideline § 2A3.1 applied to

Orellana, but it also calculated the sentencing range under § 2A3.4. Under either

analysis, it concluded that an outside-Guidelines sentence of 60 months was

“sufficient, but not greater than necessary, to comply with the purposes” of

sentencing. See 18 U.S.C. § 3553(a). The court did not err because it used the

sentencing range as a beginning point and explained its decision to deviate

therefrom. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016).

      AFFIRMED.




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