                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 23 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10464

              Plaintiff - Appellee,              D.C. No. 2:12-cr-01335-DGC-1

  v.
                                                 MEMORANDUM*
MARLON MOORE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                      Argued and Submitted October 8, 2014
                               Phoenix, Arizona

Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.

       Defendant Marlon Moore appeals from his conviction and sentence for

possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We have jurisdiction under 28 U.S.C. § 1291. We affirm the conviction and

sentence.1

      Moore argues that the search of his residence was unlawful because his

fiancée’s consent was coerced. Whether consent is obtained through coercion

depends on the totality of the circumstances and is a question of fact that we

review for clear error. United States v. Enslin, 327 F.3d 788, 792 (9th Cir. 2003).

The district court concluded that, although Moore’s fiancée surely consented in

part to ensure the welfare of her children, her consent was not the result of any

forceful, intimidating, or threatening activity by the officers and was ultimately

freely given. Under the totality of the circumstances of this case, that factual

finding was not clearly erroneous. See United States v. Patayan Soriano, 361 F.3d

494, 502-03 (9th Cir. 2003).

      Moore also argues that the district court erred in overruling his objection

under Batson v. Kentucky, 476 U.S. 79 (1986), to the government’s use of a

peremptory strike of a Hispanic juror. In overruling the Batson objection, the

district court stated: “I take as a good faith representation from the prosecution

team that they saw him putting his head on the bench and appearing not to pay

attention. That to me is a non-discriminatory basis for a peremptory strike.” The

      1
      In a separate opinion contemporaneous with this memorandum, we rejected
Moore’s argument that the search of his residence was unlawful under Georgia v.
Randolph, 547 U.S. 103 (2006).
district court thus explicitly “credited the prosecutor’s assertion” as to a juror’s

demeanor. Snyder v. Louisiana, 552 U.S. 472, 479 (2008). Such “determinations

of credibility and demeanor lie peculiarly within a trial judge’s province,” and, “in

the absence of exceptional circumstances,” reviewing courts are to “defer to” the

trial court. Id. at 477 (internal quotation marks omitted). The trial court’s

determination here does not represent an “exceptional circumstance,” and it was

not clearly erroneous.

      Moore next argues that the mid-trial disclosure of an interview his fiancée

gave to government agents, in which she stated that she had not seen drugs in the

house when she left on the morning of January 19, 2012, constituted a violation of

Brady v. Maryland, 373 U.S. 83 (1963). The mid-trial turnover of this interview

was not, however, a suppression that “undermines confidence in the outcome of the

trial.” United States v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011). The

evidence presented at trial – including the testimony of the officers who entered

Moore’s residence and discovered all of the marijuana and packing materials and

the testimony regarding Moore’s confession – was overwhelming that Moore

possessed the drugs on January 19, 2012 with an intent to distribute. The fiancée’s

statement, even if believed, does not refute the government’s evidence or support

any defense that Moore asserted. Given this “overwhelming evidence,” “there is

no reasonable probability that the verdict would have been different if the
favorable evidence had been disclosed,” and thus no Brady violation occurred. See

United States v. Olsen, 704 F.3d 1172, 1185 (9th Cir. 2013).

      Finally, Moore raises several issues with respect to his sentencing. Moore

argues that the district court erred in its sentencing guideline calculation by

including drugs from a prior arrest in September of 2011. The only evidence of

this incident offered at sentencing was a case agent’s statement to the probation

officer who prepared Moore’s Presentence Report. Hearsay evidence like this may

be used in sentencing if it is supported by sufficient indicia of reliability. U.S.S.G.

§ 6A1.3 (“In resolving any dispute concerning a factor important to the sentencing

determination, the court may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.”);

United States v. Petty, 982 F.2d 1365, 1369 (9th Cir.), amended by 992 F.2d 1015

(9th Cir. 1993) (“Due process requires that some minimal indicia of reliability

accompany a hearsay statement.”). Here, the case agent’s statements regarding the

September 2011 arrest were supported by sufficient indicia of reliability.

Following his arrest for the present offense, Moore admitted to law enforcement

officials that he was in the business of buying and selling marijuana for at least the

last three years. Moore explained that he would buy marijuana for the best price he

could obtain from one of his sources, around $550 per pound, and then sell it to his
associates on the East Coast for approximately $900 per pound, shipping the

marijuana to them through UPS. In addition, as noted by the district judge, the

present offense and the September 2011 incident used similar boxes, similar

packing material, and similar quantities. Further, the case agent testified that the

vehicles parked in Moore’s driveway on January 19, 2012, the date Moore was

arrested for the present offense, showed up in his database as being involved in the

September 2011 marijuana dropoff. Therefore, the district court did not abuse its

discretion in finding the hearsay statements sufficiently reliable to be used at

sentencing.

      Moore also argues that he was not given a meaningful opportunity to

challenge the district court’s use of the alleged September 2011 incident, as

required by U.S.S.G. § 6A1.3. Section 6A1.3 requires that “[w]hen any factor

important to the sentencing determination is reasonably in dispute, the parties shall

be given an adequate opportunity to present information to the court regarding that

factor.” However, the record shows that Moore was given an adequate opportunity

to address this factor. He was provided with a copy of the PSR containing the

hearsay statements and was able to and did object to the statements contained in

the PSR at sentencing. To the extent Moore is arguing that he should have been

provided with more discovery related to the September 2011 incident, rather than

just the hearsay statements contained in the PSR, section 6A1.3 allows hearsay
evidence to be considered at sentencing provided that it “has sufficient indicia of

reliability to support its probable accuracy.” As explained above, the hearsay

statements at issue possessed a sufficient indicia of reliability.

      Next, Moore argues that the district court erred when it denied him a two-

level downward adjustment pursuant to the five-factor “safety valve” provision

contained in 18 U.S.C. § 3553(f). The parties agree that Moore satisfies the first

four safety-valve factors – the only dispute is whether he “truthfully provided to

the Government all information and evidence . . . concerning the offense . . . .” 18

U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5). The district court held that

Moore had not met this factor because he had not truthfully provided all of the

information he knew concerning the September 2011 arrest. Moore does not argue

that the arrest did not occur, nor does he argue that he provided the government

with all the information he knew concerning that incident. Thus, the district court

did not clearly err when it held that Moore’s failure to provide the government

with information about this arrest precluded application of the safety-valve. See

United States v. Rangel-Guzman, 752 F.3d 1222, 1226 (9th Cir. 2014) (“The

district court’s factual determination that a defendant doesn’t qualify for

safety-valve relief is reviewed for clear error.”).

      Finally, Moore argues that the district court erred when it refused to give

Moore a two-level downward departure for acceptance of responsibility under
U.S.S.G. § 3E1.1(a). The district court’s decision was based on the fact that Moore

refused to plead guilty and forced the government to go to trial. “A defendant’s

right to contest his guilt before a jury is protected by the Constitution, and his

decision to do so ‘cannot be held against him.’” United States v. Ramos-Medina,

706 F.3d 932, 940 (9th Cir. 2013). In this case, however, the entire theory of

Moore’s case was that the government had failed to meet its burden of proof, as

evidenced by the conclusion of Moore’s closing argument:

      The Government has to prove this case beyond a reasonable doubt.
      And they have not done so. They have not shown you whose
      fingerprints are on this stuff. They have not shown you whose DNA
      is on this stuff. They’ve not fingerprinted the boxes or brought the
      boxes in. They’ve not ran DNA analysis on the boxes. They’ve not
      brought you a recording. They’ve not put agents who can credibly tell
      you what was said in that room.

Section 3E1.1 is not designed to apply under these circumstances. See U.S.S.G. §

3E1.1, cmt. n.2 (“This adjustment is not intended to apply to a defendant who puts

the government to its burden of proof at trial by denying the essential factual

elements of guilt, is convicted, and only then admits guilt and expresses

remorse.”). Moreover, the district court’s determination on this point is entitled to

“great deference” because the “sentencing judge is in a unique position to

evaluate” such factors. U.S.S.G. § 3E1.1 cmt. n.5. Thus, on clear error review, the

district court did not err when it found Moore was not entitled to a downward

departure for acceptance of responsibility. See United States v. Garrido, 596 F.3d
613, 617 (9th Cir. 2010) (reviewing for clear error the district court’s factual

finding as to whether the defendant accepted responsibility).

      AFFIRMED.2




      2
         On September 14, 2014, Moore filed a motion requesting that the panel
remand the action with directions to the district court to determine whether to
adjust Moore’s sentence in light of Amendment 782. Because Amendment 782
does not become effective until November 1, 2014, the appropriate course is for
Moore to file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) in
the district court after Amendment 782 goes into effect. Therefore, Moore’s
motion is DENIED.
