                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                           FOR THE NINTH CIRCUIT                            MAY 25 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 07-50002; 09-50641

              Plaintiff - Appellee,              D.C. No. 3:05-cr-1550-DMS

  v.
                                                 MEMORANDUM *
JOVANNI MENDOZA,

              Defendant - Appellant.




                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                       Argued and Submitted April 12, 2012
                               Pasadena, California

Before: SILVERMAN and RAWLINSON, Circuit Judges, and TUNHEIM,
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
      Jovanni Mendoza appeals his conviction and 235-month prison sentence for

importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960, possession of

marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), bringing

in illegal aliens for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and

transportation of illegal aliens and aiding and abetting, in violation of 8 U.S.C. §

1324(a)(1)(A)(ii) and (v)(II). Mendoza also appeals the denial of his motion for a

new trial or a writ of coram nobis.




1.    Mendoza waived his statutory right to a speedy trial because he failed to

      raise it to the district court. See 18 U.S.C. § 3162(a)(2). Mendoza’s

      constitutional speedy trial right was also not undermined because he has not

      demonstrated prejudice, the delay in his trial was due to his outstanding

      discovery motion and requests for continuances, and he did not object to the

      delay. See United States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995).




2.    The district court did not err in denying Mendoza’s motion to suppress

      evidence obtained from his arrest and a search and seizure on August 24,

      2005. The initial stop and questioning conducted by the Border Patrol

      Agent was lawful. See United States v. Wilson, 7 F.3d 828, 833 n.2 (9th Cir.


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     1993) (“[C]heckpoints may be used to investigate alien smuggling as well as

     alien status.”). Because Mendoza failed to produce requested identification

     and the arresting Agent knew Mendoza was a suspected smuggler, there was

     a “fair probability” that Mendoza had committed a crime; thus, there was

     probable cause to arrest Mendoza and search his vehicle. See Crowe v. Cty.

     of San Diego, 608 F.3d 406, 432 (9th Cir. 2010).




3.   Evidence introduced at Mendoza’s trial regarding law enforcement

     smuggling interdiction efforts was admissible to provide “the context in

     which the charged crime[s] occurred.” See United States v. Rrapi, 175 F.3d

     742, 748 (9th Cir. 1999) (internal quotation marks omitted).




4.   The district court did not err in finding discovery about other wrong-way

     drivers immaterial to Mendoza’s defense, see Fed R. Crim. P. 16(a)(1)(E)(i);

     furthermore, lack of access to this discovery did not deprive Mendoza of a

     meaningful opportunity to present a complete defense, see United States v.

     Stever, 603 F.3d 747, 755 (9th Cir. 2010).




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5.   The district court did not err in admitting the material witnesses’

     identifications of Mendoza. Although the in-court and out-of-court

     procedures that produced these identifications were suggestive, see United

     States v. Montgomery, 150 F.3d 983, 992 (9th Cir. 1998), United States v.

     Barrett, 703 F.2d 1076, 1084 (9th Cir. 1983), the identifications were

     reliable under the totality of circumstances, see Neil v. Biggers, 409 U.S.

     188, 199-200 (1972).




6.   The district court did not err in admitting evidence of Mendoza’s other

     wrongdoing under Federal Rule of Evidence 404(b) because this evidence

     was relevant to establishing Mendoza’s identity and not unduly prejudicial.




7.   There was sufficient evidence for a rational trier of fact to find Mendoza

     guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

     319 (1979).




8.   We decline to consider Mendoza’s ineffective assistance of counsel claim on

     direct appeal because the record is insufficiently developed. See United

     States v. Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005). Furthermore, we


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      affirm the denial of Mendoza’s new trial motion based on ineffective

      assistance of counsel; the proper vehicle for this claim is a 28 U.S.C. § 2255

      motion. See United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997).




9.    The district court did not err in denying Mendoza’s motion for a new trial on

      the basis of newly-discovered evidence. Most of the evidence raised by

      Mendoza could have been or was discovered before his trial and the

      remainder was unlikely to produce an acquittal. See United States v.

      Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009).




10.   The district court did not err in denying Mendoza’s request for a writ of

      coram nobis because Mendoza may seek relief under 28 U.S.C. § 2255. See

      Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002).




11.   When calculating Mendoza’s combined offense level for sentencing, the

      district court improperly applied the same enhancement, under United States

      Sentencing Guidelines Manual § 3A1.2(c), to Groups I (marijuana offenses)

      and II (illegal alien offenses). Applying this enhancement twice on account

      of the same wrong and victim constituted impermissible double counting


                                         5
      under United States v. Calozza, 125 F.3d 687, 692 (9th Cir. 1997). Because

      the district court sentenced Mendoza to the top of an erroneous guideline

      range, we will remand to allow the district court to exercise its discretion

      after correcting the unit calculation.




  CONVICTION AFFIRMED; SENTENCE VACATED and REMANDED

for resentencing.




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