                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 28 2009

                                                                       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. 08-10332

             Plaintiff - Appellee,               D.C. No. 4:99-cr-00759-JMR-
                                                 HCE-34
  v.

RUBEN ULTRERAS,                                  MEMORANDUM *

             Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   John M. Roll, Chief District Judge, Presiding

                     Argued and Submitted November 3, 2009
                            San Francisco, California

Before: HAWKINS and THOMAS, Circuit Judges, and TRAGER, ** District Judge.

       Ruben Ultreras (“Ultreras”) appeals his conviction arising from a cocaine

trafficking conspiracy, arguing error in the denial of his motion to sever, vindictive




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
prosecution in violation of his due process rights, and improper application of a two-

level sentencing enhancement. We affirm.

A. Denial of Severance Motion

      A district court’s denial of a motion for severance is reviewed for an abuse of

discretion. United States v. Decoud, 456 F.3d 996, 1008 (9th Cir. 2006). “The test

for abuse of discretion by the district court is whether a joint trial was so manifestly

prejudicial as to require the trial judge to exercise his discretion in but one way, by

ordering a separate trial.” Id. (internal quotation marks omitted).

      The government argues Ultreras waived his severance claim when he failed to

renew it at the close of evidence. We need not decide the waiver issue because even

if Ultreras preserved his severance claim, the denial of severance was not an abuse of

discretion.

      The witnesses called at the joint trial of Ultreras and his co-defendant,

Francisco Valle-Hurtado (“Valle-Hurtado”), were relevant to the conspiracy charge

Ultreras would have faced in an individual trial, and the trial judge issued appropriate

limiting instructions to the jury to prevent “spillover.” There is no indication the jury

was unable to separately evaluate the cases against Ultreras and Valle-Hurtado. The

Ninth Circuit Model Jury Instructions regarding individualized findings were given




                                           2
at the opening and conclusion of trial, and the vast majority of the evidence the

prosecutor presented went to the trafficking conspiracy.

B. Vindictive Prosecution

      Ultreras also challenges the government’s “cumulative conduct,” contending

the exercise of prosecutorial discretion resulted in a “vindictive,” “fundamentally

unfair” prosecution violative of his due process rights.

      While the standard of review for vindictive prosecution remains somewhat

unsettled, see United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.

2001); United States v. Frega, 179 F.3d 793, 801 (9th Cir. 1999), Ultreras’s

vindictiveness claim fails regardless of the standard applied, and we need not

determine the appropriate standard of review. See United States v. Lopez, 474 F.3d

1208, 1211 n.2 (9th Cir. 2007) (declining to decide); Hernandez-Herrera, 273 F.3d

at 1217 (same); United States v. Gamez-Orduño, 235 F.3d 453, 462 n.9 (9th Cir.

2000) (same); Frega, 179 F.3d at 801 (same).

      To show that the government violated his “right to due process of law” by

punishing him for “exercising a protected statutory or constitutional right,” United

States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007), Ultreras must point to

“[e]vidence indicating a realistic or reasonable likelihood of vindictiveness,” which




                                          3
then “give[s] rise to a presumption of vindictiveness on the government’s part.”

United States v. Garza-Juarez, 992 F.2d 896, 906 (9th Cir. 1993) (citation omitted).

      Ultreras provides no “direct evidence of the prosecutor’s punitive motivation

towards” him. See Jenkins, 504 F.3d at 699; cf. Nunes v. Ramirez-Palmer, 485 F.3d

432, 437, 442 (9th Cir. 2007) (prosecutor’s allegedly punitive statements in the

newspaper indicating happiness with the defendant’s sentence was some evidence of

genuine animus). Rather, he either infers vindictiveness from the prosecution’s

decision to reach a sentencing agreement with Valle-Hurtado, or implies the

prosecution never intended Valle-Hurtado to be sentenced for the firearm charge in

the first place. However, Ultreras fails to point to evidence which would establish this

purported strategy, and alleging the government may have changed its mind about the

appropriate punishment for Valle-Hurtado, is not grounds to find a due process

violation for Ultreras. See United States v. Gastelum-Almeida, 298 F.3d 1167, 1173

(9th Cir. 2002) (“[V]indictiveness will not be presumed simply from the fact that a

more severe charge followed on, or even resulted from, the defendant’s exercise of a

right.” (internal quotation marks omitted)).

C. Sentencing Enhancement

      Ultreras challenges the application of a two-level specific offense characteristic

for possession of a firearm in furtherance of the conspiracy.


                                           4
      Although Ultreras and Valle-Hurtado may never have met, “[c]o-conspirators

are jointly liable for the acts of any conspirator done in furtherance of the conspiracy.”

United States v. Hegwood, 977 F.2d 492, 498 (9th Cir. 1992) (citing Pinkerton v.

United States, 328 U.S. 640, 646-47 (1946)). Thus, we have found a defendant need

not have actual knowledge of a co-conspirator’s possession of a firearm as long as the

possession was reasonably foreseeable. United States v. Garcia, 909 F.2d 1346,

1349-50 (9th Cir. 1990).

      The Sentencing Guidelines’ application notes explain, “[t]he [firearms]

adjustment should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” USSG § 2D1.1,

comment. (n.3).     Here, Ultreras’s co-conspirator was found guilty of using an

automatic AK-47 to guard large quantities of cocaine. Possession of the weapon was

probable and foreseeable, given that Ultreras’s organization trafficked in large

amounts of cocaine and routinely guarded such shipments with automatic weapons.

      In imposing a sentence within the Sentencing Guidelines the district court

committed neither procedural nor substantive error. See United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc). By a preponderance of the evidence, see

United States v. Pike, 473 F.3d 1053, 1057 (9th Cir. 2007); United States v. Riley, 335

F.3d 919, 927 (9th Cir. 2003), the government demonstrated a co-conspirator used a


                                            5
weapon in furtherance of the conspiracy, and the district court did not abuse its

discretion in applying the Guidelines to these facts. See United States v. Ortiz, 362

F.3d 1274, 1275 (9th Cir. 2004) (two findings required under § 1B1.3(a)(1)(B))

      AFFIRMED.




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