                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            JAN 19 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   15-10096

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-08122-SPL-1
 v.

ROY RED JOEY,                                    MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Steven Paul Logan, District Judge, Presiding

                      Argued and Submitted October 18, 2016
                            San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.

      Roy Red Joey appeals his conviction on two counts of abusive sexual

contact of a minor and two counts of committing a felony offense involving a

minor while required to register as a sex offender. We have jurisdiction under 28




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts of

this case, we do not repeat them here.

      1.     Contrary to the government’s argument, Joey adequately preserved

his objection to the expert testimony pursuant to Fed. R. Evid. 702 and Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993). However, even

assuming, arguendo, that the expert testimony was admitted in error, any error was

harmless in light of Joey’s admission that touching occurred and that he was

sexually gratified by it.

      2.     Assuming, arguendo, that the district court erroneously excluded the

children’s testimony about Joey’s wife, any error was harmless. Joey had

opportunities to show that the statements were not credible or consistent. And the

jury appears to have disbelieved the children’s testimony in some respects, given

two not-guilty verdicts and two failures to render verdicts.

      3.     The district court did not err in admitting Joey’s October 15, 2012

statements to the Federal Bureau of Investigation. Although the FBI’s internal

policy to conduct polygraph examinations without recording them makes review

more difficult, the totality of the circumstances support the district court’s

determination that Joey’s statements were voluntary.




                                           2
      4.       Assuming, arguendo, that the district court erred by overruling two of

Joey’s hearsay objections and sustaining one of the government’s hearsay

objections, any error was harmless given Joey’s admission that he touched the

children, and that he was sexually gratified.

      5.       Joey acknowledges that in United States v. Zepeda, 792 F.3d 1103

(9th Cir. 2015) (en banc), we rejected a constitutional challenge to the Indian

Major Crimes Act. Zepeda remains good law; thus, Joey’s Fifth Amendment

rights to due process and equal protection were not violated by his federal

prosecution.

      6.       The district court properly explained why it was rejecting the

defendant’s sentencing position. See United States v. Carty, 520 F.3d 984, 992–93

(9th Cir. 2008) (en banc) (describing requirement). The district court reviewed the

Presentence Report, Joey’s objections to the report, and the government’s

response, as well as the charging document and the government’s sentencing

memorandum, and heard argument by both parties. The district court overruled

Joey’s objections to the Presentence Report, indicating that it had adequately

considered Joey’s arguments.

      7.       Assuming, arguendo, that the district court’s determination was an

upward departure, rather than merely a variance under § 3533(a), and that the


                                            3
district court failed to give the parties “reasonable notice,” under Federal Rule of

Criminal Procedure 32(h), that it was considering an upward departure from the

Sentencing Guidelines, the district court did not commit plain error. See United

States v. Sherwood, 98 F.3d 402, 402 (9th Cir. 1996) (describing plain error

review). “Plain error is (1) error, (2) that is plain, and (3) that affects substantial

rights. If the failure to provide notice is plain error, we will grant relief if it

seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th Cir.

2008) (citation omitted). The government sought life imprisonment, so Joey had

an opportunity to comment on potential grounds for an upward departure at the

sentencing hearing and the issues that impacted sentencing were adequately tested.

Any alleged error is harmless.

       8.     The district court appears to have based its sentencing decision in part

on an impermissible factor, namely that Joey was a danger to the community

because of his “elder” status. When a “district court consider[s] both proper and

improper bases for departure, we have no way to determine whether any portion of

the sentence was based upon consideration of the improper factors.” United States

v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir. 1990) (citation omitted). In such

a case, we “must determine whether the district court would have imposed the


                                             4
same sentence based upon valid factors, not whether it could have based its

departure on the remaining factors.” Sherwood, 98 F.3d at 414 (emphasis in

original).

       Based on the other statements the judge made at the sentencing hearing, it is

clear the district court would have imposed the same sentence absent consideration

of Joey’s “elder” status. Therefore, any error did not affect the selection of its

sentence and remand on this ground is unwarranted.



       AFFIRMED.




                                           5
