                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 11 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50166

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00552-RHW-1

  v.
                                                 MEMORANDUM *
CESAR RICARDO GONZALEZ-
GARCIA,

               Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Central District of California
                 Robert H. Whaley, Senior District Judge, Presiding

                           Submitted September 6, 2012 **
                               Pasadena, California

Before:        KOZINSKI, Chief Judge, WATFORD and HURWITZ, Circuit
               Judges.


       1. We view the evidence “in the light most favorable to the prosecution”

and then ask whether “any rational trier of fact could have found the essential


          *
             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).
                                                                                  page 2

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979); United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en

banc). Even if the evidence Gonzalez introduced supported the inference that he

was born in the United States, the jury could reasonably resolve competing

inferences “in favor of the prosecution.” Jackson, 443 U.S. at 326.

      This isn’t one of the “exceptional cases” where a new trial is called for

because “the evidence preponderates heavily against the verdict.” United States v.

Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (internal quotation marks omitted).

The government introduced several documents to establish Gonzalez’s alienage,

including a Mexican birth certificate and an amnesty application. The jury was

entitled to credit this evidence over that introduced by Gonzalez.


      2. Whether a juror was actually biased is a question of fact that we review

for manifest error. Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en banc).

Here defense counsel didn’t alert the district court of the juror’s alleged gasp until

after trial, by which time neither the judge nor opposing counsel could recall

hearing it. Even if there was a gasp, we cannot say the district court manifestly

erred in concluding that the record did not support a finding of bias.
                                                                                  page 3

      3. The district court didn’t find Gonzalez ineligible for the acceptance of

responsibility adjustment solely because he went to trial. Cf. United States v.

Ochoa-Gaytan, 265 F.3d 837, 842–43 (9th Cir. 2001). The denial of the

adjustment wasn’t an abuse of discretion, particularly because the court did

mitigate Gonzalez’s sentence in light of the fact that he grew up believing he was

an American citizen.


      AFFIRMED.
