                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       SEP 26 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   15-10588
                                                      17-10313
                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             4:11-cr-04021-RCC-DTF-1

JOSEPH EDWARD CAMARGO,
                                                MEMORANDUM*
                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    Raner C. Collins, Chief Judge, Presiding

                         Submitted September 14, 2018**
                            San Francisco, California

Before: RAWLINSON, WATFORD, and FRIEDLAND, Circuit Judges.

      Joseph Camargo appeals his convictions and 65-year sentence on charges of

second degree murder, assault, discharge of a firearm during a crime of violence,

and possession of ammunition by a felon. We affirm Camargo’s convictions,

vacate his sentence, and remand.


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1. The district court did not abuse its discretion in denying Camargo’s

motion for a new trial based on new evidence regarding an FBI investigation of an

evidence custodian. See United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir.

2009) (en banc). To be entitled to a new trial, the moving party must show that

“(1) the evidence is newly discovered; (2) the defendant was diligent in seeking the

evidence; (3) the evidence is material to the issues at trial; (4) the evidence is not

(a) cumulative or (b) merely impeaching; and (5) the evidence indicates the

defendant would probably be acquitted in a new trial.” Id. at 1264. The last two

requirements are not satisfied here.

      The new evidence seems to have been “merely impeaching.” The evidence

would have merely undermined the credibility of Isabel Quintero’s trial testimony,

given that there is no evidence that she tampered in any way with the evidence in

Camargo’s case. And the Government did not rely on Quintero’s testimony

anyway. Cf. United States v. Davis, 960 F.2d 820, 825-26 (9th Cir. 1992)

(assuming some impeachment evidence may make a witness’s testimony so

incredible that it renders the testimony worthless, then asking whether there was

any other evidence to support the elements of the charged offense).

      Even if the new evidence were more than merely impeaching, it does not

show that Camargo would probably have been acquitted in a new trial. Quintero’s

testimony about the chain of custody helped Camargo, and correspondingly hurt



                                           2
the Government, because it was inconsistent with the testimony from the case

agent. Camargo benefited from Quintero’s credibility and would have suffered

from the lack of credibility suggested by the investigation.

      2. Nor did the district court plainly err or abuse its discretion in not striking

the testimony of a detective who testified inconsistently between Camargo’s first

and second trials.1 The parties agree that Detective Alfred Woods testified

inconsistently between the two trials. The usual way to deal with inconsistent

testimony by a witness is through impeachment, not through striking the testimony

altogether. The “district court was not obligated to decide the credibility question

and strike [Woods’s] testimony, because the determination of credibility is for the

jury.” United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995).

      3. While we affirm Camargo’s convictions, we vacate his sentence and

remand for reconsideration in light of Dean v. United States, 137 S. Ct. 1170

(2017). It appears the district court may not have understood its discretion under

28 U.S.C. “§ 3553(a) and the related provisions to consider [the mandatory




      1
         It appears that Camargo did not move to strike this testimony in the district
court and that our review is accordingly for plain error. See Fed. R. Evid. 103;
United States v. Hayat, 710 F.3d 875, 893 (9th Cir. 2013); see also United States v.
Murguia-Rodriguez, 815 F.3d 566, 574-75 (9th Cir. 2016) (holding that we are not
bound to accept the government’s incorrect concession regarding the standard of
review). Even assuming abuse of discretion review applies, however, the district
court did not abuse its discretion in admitting the testimony.


                                           3
minimum] sentence imposed under the [use of a firearm statute] when calculating a

just sentence for the predicate count,” as clarified by the later Dean decision. Id. at

1176-77. In such circumstances, we will vacate the sentence and remand for

reconsideration. See United States v. Thomas, 856 F.3d 624 (9th Cir. 2017), cert.

denied, 138 S. Ct. 146 (2017).

      AFFIRMED in part, VACATED in part, and REMANDED.




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