                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 15 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-30074

              Plaintiff - Appellee,              D.C. No. 2:08-cr-02140-WFN-1

  v.
                                                 MEMORANDUM*
DAVID LYLE GOMEZ,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
              Wm. Fremming Nielsen, Senior District Judge, Presiding

                            Submitted August 2, 2011**
                               Seattle, Washington

Before: SCHROEDER and M. SMITH, Circuit Judges, and FOGEL, District
Judge.***




        *
             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).
        ***
             The Honorable Jeremy D. Fogel, District Judge for the United States
District Court for Northern District of California, sitting by designation.
      David Gomez (“Gomez”) appeals his jury conviction of aggravated sexual

abuse within Indian Country, in violation of 18 U.S.C. §§ 1153 and 2241(c). On

appeal, Gomez argues that the evidence produced at trial was insufficient to

support a conviction. We review de novo the denial of a Rule 29 motion for

acquittal. See United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir. 2010). The

evidence presented at trial permitted a rational jury to find Gomez guilty beyond a

reasonable doubt of aggravated sexual abuse within Indian Country, and therefore

we affirm.

      To prove a violation of 18 U.S.C. §§ 1153 and 2241(c), the government

must show that: (1) the defendant knowingly engaged in a sexual act with Victim;

(2) at that time, Victim had not yet reached the age of twelve years; (3) the offense

was committed within Indian Country; and (4) the defendant is an Indian.

      There was no dispute that the victim was under the age of twelve when the

sexual abuse occurred. In fact, she was only eleven-years-old when she testified at

the trial. At trial, the parties agreed to stipulate that Gomez is an enrolled member

of the Yakama Nation, and is therefore an Indian as defined by 18 U.S.C. § 1153.

The parties also stipulated that the residence where the abuse took place is within

the Yakama Nation Reservation, and thus within Indian Country, as defined by 18

U.S.C. § 1153. Thus, Gomez challenges only the sufficiency of the evidence


                                          2
relating to the first element of the crime – whether he knowingly engaged in a

sexual act with the victim.

      At most, Gomez’s contentions on appeal amount to challenges to the

credibility of the government witnesses, and principally the credibility of the

victim’s trial testimony. The credibility of witnesses, however, is a question for

the jury and is unreviewable on appeal. United States v. Delgado, 357 F.3d 1061,

1068 (9th Cir. 2004). The district court properly denied Gomez’s Rule 29 motion,

since there was sufficient evidence to support his conviction.

      AFFIRMED.




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