                                                                              FILED
                             NOT FOR PUBLICATION                              NOV 14 2012

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10390

                Plaintiff - Appellee,            D.C. No. 1:09-cr-00466-OWW-1

  v.
                                                 MEMORANDUM*
MICHAEL MINJAREZ,

                Defendant - Appellant.


                     Appeal from the United States District Court
                         for the Eastern District of California
                  Oliver W. Wanger, Senior District Judge, Presiding

                       Argued and Submitted October 17, 2012
                             San Francisco, California

Before: B. FLETCHER,** HAWKINS, and MURGUIA, Circuit Judges.

       Michael Minjarez (“Minjarez”) was convicted in federal court of armed

credit union robbery, armed bank robbery, and bank robbery. During trial, the



            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Betty Binns Fletcher, Senior Circuit Judge for the
Ninth Circuit Court of Appeals, fully participated in the case and concurred in the
judgment prior to her death.
government called Marie Centeno, a cousin of Lisa Minjarez, Michael Minjarez’s

wife. Centeno testified that a car seen near the location of two of the robberies was

similar to the car that she loaned Lisa Minjarez in August 2009. During cross-

examination, defense counsel elicited from Centeno that she did not like Minjarez

because she believed that Minjarez had caused a rift between Centeno and Lisa

Minjarez. On re-direct, the prosecutor asked Centeno why the rift existed.

Centeno explained that she thought Minjarez robbed Lisa Minjarez’s house.

      Defense counsel objected and moved to strike Centeno’s response. The

court granted the motion to strike and sustained the objection, admonishing the

jury to disregard Centeno’s reply, and to “put it out of your minds as if you had not

heard it.” Defense counsel moved for a mistrial, which the court denied. After

Centeno completed her testimony, the court again admonished the jury to disregard

Centeno’s testimony about her reason for disliking Minjarez.

      Denial of a motion for a mistrial is reviewed for abuse of discretion. United

States v. Allen, 341 F.3d 870, 891 (9th Cir. 2003). There was no abuse of

discretion in this case. We must assume that a jury follows any curative

instruction. United States v. Johnson, 618 F.2d 60, 62 (9th Cir. 1980). Here, the

judge immediately admonished the jury to disregard the testimony, and instructed

them again several minutes later. In evaluating a curative instruction, this Court


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weighs “the forcefulness of the instruction and the conviction with which it was

given against the degree of prejudice generated by the evidence,” and in examining

prejudice, compares “the probative force of the inadmissible evidence . . . with that

of the admissible evidence which supports the verdict.” Johnson, 618 F.2d at 62

(internal citations omitted).

       Centeno’s short reference to her belief that Minjarez robbed a house had

little “probative force” relative to the numerous eyewitnesses who observed the

bank robberies, described them for the jury, and then positively identified Minjarez

as the robber. The judge’s admonishment was prompt, unequivocal, and repeated

twice. It may be, as Minjarez asserts, impossible to “unring the bell” of hearing

Centeno’s testimony. But in light of the court’s instructions and the great weight

of the evidence against Minjarez, it is proper to assume that the jury convicted him

based on the admissible evidence. See, e.g., United States v. Ramirez, 176 F.3d

1179, 1183 (9th Cir. 1999) (upholding the denial of a mistrial when the court gave

a “strong” curative instruction after the prosecutor misstated facts of the case by

asserting that the defendant had previously smuggled marijuana into the United

States). The district judge did not abuse his discretion in denying Minjarez a

mistrial.




                                     Page 3 of 5
      At the sentencing hearing, Minjarez moved to dismiss the government’s

information to establish prior convictions, arguing that a portion of the federal

three-strikes statute, 18 U.S.C. § 3559(c)(3)(A)—which allows a defendant to

prove that certain predicate felonies are non-qualifying under the statute—is

contrary to the Supreme Court’s holding in Apprendi v. New Jersey that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. 466, 490 (2002). The court denied the

motion and sentenced Minjarez to life in prison.

      The legality of a sentence and constitutionality of a statue are both reviewed

de novo. United States v. Kaluna, 192 F.3d 1188, 1193 (9th Cir. 1999) (en banc)

(constitutionality of a statute); United States v. Mullins, 992 F.2d 1472, 1478–79

(9th Cir. 1993) (legality of a sentence). It is well established in this circuit and in

at least eight others that 18 U.S.C. § 3559(c)(3)(A) may constitutionally shift the

burden to the defendant to prove that a prior conviction does not qualify as a

predicate offense. See Kaluna, 192 F.3d at 1196; United States v. Contreras, 536

F.3d 1167, 1173–74 (10th Cir. 2008); United States v. Snype, 441 F.3d 119,

149–50 (2d Cir. 2006); United States v. Bradshaw, 281 F.3d 278, 294–95 (1st Cir.

2002); United States v. Davis, 260 F.3d 965, 970 (8th Cir. 2001); United States v.


                                      Page 4 of 5
Gray, 260 F.3d 1267, 1277–80 (11th Cir. 2001); United States v. Ferguson, 211

F.3d 878, 886–87 (5th Cir. 2000); United States v. Gatewood, 230 F.3d 186, 190

(6th Cir. 2000) (en banc); United States v. Wicks, 132 F.3d 383, 387–89 (7th Cir.

1997).

      After the government introduces evidence of two qualifying prior offenses,

the imposition of a life sentence is automatic; it occurs without any judicial fact-

finding. See 18 U.S.C. § 3559(c)(1)(A) (providing that a defendant “shall” be

sentenced to life in prison); see also Snype, 441 F.3d at 151 (observing that

Congress was not required to create the exception in § 3559(c)(3)(A)); Gray, 260

F.3d at 1279 (same). Any subsequent judicial finding relieving the defendant of

the life sentence, based on evidence proving there was no weapon or bodily injury

involved in his prior offense, decreases, not increases, the penalty faced by the

defendant. This does not offend Apprendi. See Apprendi, 530 U.S. at 490.1

             AFFIRMED.




      1
       Although Minjarez argues that our precedential decision, Kaluna, predates
Apprendi, he does not offer a compelling reason that this matters. Kaluna, like
many of our sister circuits’ opinions postdating Apprendi, relied on Patterson v.
New York, 432 U.S. 197 (1977). Patterson held that placing the burden on a
defendant to establish an affirmative defense did not violate due process. Kaluna,
192 F.3d at 1196. Apprendi did not abrogate the central holding of Patterson. See
Apprendi, 530 U.S. at 490; Contreras, 536 F.3d at 1174; Snype, 441 F.3d at 150.

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