                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 05 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10231

              Plaintiff - Appellee,              D.C. No. 3:13-cr-08043-GMS-1

 v.
                                                 MEMORANDUM*
VALANCE RAY SMITH, Sr., AKA
Valance Ray Smith,

              Defendant - Appellant.


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

                          Submitted September 17, 2015**
                             San Francisco, California

Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.

      Defendant-Appellant Valance Ray Smith (“Smith”) appeals his 2014

convictions and sentence for assault with a dangerous weapon with intent to do

bodily harm and assault resulting in serious bodily injury under 18 U.S.C. §§

        *
             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).
113(a)(3), 113(a)(6), and 1153. Because the parties are familiar with the facts and

procedural history, we do not restate them except as necessary to explain our

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

      1.     The district court properly denied Smith’s motion to suppress

evidence from the searches of his home upon determining that Smith freely and

voluntarily consented to those searches. See Georgia v. Randolph, 547 U.S. 103,

109 (2006). Although Smith appeared intoxicated during the two searches, he had

already begun cleaning the crime scene, gave his own version of the events, was

able to answer the officer’s questions and sign the consent form without any

difficulty, was alert, cooperative, and steady on his feet, had no trouble helping the

officer lift a mattress, and did not appear to be confused at any point. Under these

circumstances, the district court did not clearly err in determining that a reasonable

officer would have viewed Smith’s consent as voluntary. See United States v.

Koshnevis, 979 F.2d 691, 694–95 (9th Cir. 1992).

      2.     The district court also properly denied Smith’s motion to suppress his

statements made in custody, based on its determination that Smith voluntarily

waived his Miranda rights under the totality of the circumstances. See Miranda v.

Arizona, 384 U.S. 436, 444–45 (1966). There is no direct evidence that Smith was

intoxicated when he executed a written waiver at the time of his interrogation, nor


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is there evidence to support the attenuated inference that because Smith was

intoxicated when he was arrested the night before, he would have remained so 17

hours later when interrogated. To the contrary, Smith was able to lucidly and

coherently answer questions, was consistently responsive, and never asked for

questioning to stop. Under these circumstances, the district court did not clearly

err in determining that Smith’s waiver was the “product of his free will and rational

choice.” See United States v. Martin, 781 F.2d 671, 673–74 (9th Cir. 1985).

      3.     Even assuming the district court erred in finding joinder proper under

Federal Rule of Criminal Procedure 8(a), this error does not require reversal

because it did not result in actual prejudice that had a “substantial and injurious

effect or influence” on the jury’s verdict. See United States v. Jawara, 474 F.3d

565, 579 (9th Cir. 2007) (quoting United States v. Terry, 911 F.2d 272, 277 (9th

Cir. 1990)). The district court properly instructed the jury to consider the charges

separately. Further, even if the charges had been severed and tried separately,

evidence regarding both episodes of assault would likely have been admitted in

both trials to rebut Smith’s defenses of self-defense and self-injury. Both of these

factors weigh against a finding of actual prejudice. See id. at 579–80 (citing

United States v. Lane, 474 U.S. 438, 450 (1986)).




                                           3
      4.     The district court did not abuse its discretion by denying Smith’s

motion to sever under Federal Rule of Criminal Procedure 14(a). See United States

v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008). Because Smith did not renew his

severance motion at the close of trial and he has not shown that he diligently

pursued severance or that renewal would be an unnecessary formality, his

severance claim is waived on appeal. See United States v. Decoud, 456 F.3d 996,

1008 (9th Cir. 2006); Terry, 911 F.2d at 277. Even assuming Smith’s severance

claim under Rule 14(a) was properly preserved, Smith cannot satisfy his burden

under Rule 14(a) of demonstrating manifest prejudice because he cannot show that

joinder prejudiced him under Rule 8(a)’s less demanding “actual prejudice”

standard. See Jawara, 474 F.3d at 579, 581.

      5.     The district court did not abuse its discretion in denying Smith’s

request for a downward departure or variance. Sentencing decisions, including

whether to grant a downward departure or variance, are reviewed for abuse of

discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). In

light of Smith’s history of numerous violent crimes, including several that were not

counted in his Guidelines calculation because they were tribal convictions, the

district court reasonably determined that his criminal history category did not

overrepresent his criminal history. The district court also reasonably determined


                                          4
that Smith’s intoxication and history of alcohol abuse did not warrant a downward

departure or variance in light of the seriousness of the offenses.

      AFFIRMED.




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