                                                                                        FILED
                            NOT FOR PUBLICATION                                         SEP 13 2013

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



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-50326

              Plaintiff - Appellee,              D.C. No. 3:08-cr-2018-L-3

  v.
                                                 MEMORANDUM*
LUIS ALVAREZ,

              Defendant - Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                            Submitted August 27, 2013**
                               Pasadena, California

Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.***

       Luiz Alvarez appeals his convictions and sentence for conspiracy to

distribute 50 grams or more of methamphetamine (21 U.S.C. §§ 841(a) & 846),




        *
             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 Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
and possession with intent to distribute 90 grams of methamphetamine and aiding

and abetting (21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2).

      It was not plain error for the district court to refer to an expert witness as an

“expert” in the presence of the jury. There is no clear or obvious rule in this

Circuit that prohibits such a practice and even if the reference was an error, it did

not affect the outcome of the trial because the jury received overwhelming

evidence of defendant’s guilt. Since the requirements for plain error have not been

met, the panel need not determine whether the error “seriously affect[ed] the

fairness, integrity or public reputation” of defendant’s trial. See Puckett v. United

States, 556 U.S. 129, 135, 129 S. Ct. 1423, 173 L.Ed.2d. 266 (2009).

      Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140

L.Ed.2d 350 (1998), which authorized, for sentencing purposes, judicial fact

finding as to the existence of a prior conviction, remains binding authority.

Defendant has failed to offer a viable argument for avoiding its holding.

      AFFIRMED.




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