                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                                 AUG 22 2011

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

UNITED STATES OF AMERICA,                         No. 10-50392

              Plaintiff - Appellee,               D.C. No. 3:09-cr-01558-JM-1

  v.
                                                  MEMORANDUM*
ANTONIO CIRANDA-SANCHEZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Southern District of California
                  Jeffrey T. Miller, Senior District Judge, Presiding

                         Argued and Submitted June 7, 2011
                               Pasadena, California

Before: B. FLETCHER and N.R. SMITH, Circuit Judges, and GWIN, District
Judge.**

       The district court did not abuse its discretion by substituting an alternate

juror because of the original juror’s loud, distracting cough. A district court abuses

its discretion when it “base[s] its ruling on an erroneous view of the law or a

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James S. Gwin, District Judge for the U.S. District
Court for Northern Ohio, Cleveland, sitting by designation.
clearly erroneous assessment of the evidence.” United States v. Hinkson, 585 F.3d

1247, 1259 (9th Cir. 2009) (en banc) (quoting Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990) (internal quotation marks omitted)). Neither error

occurred in this case.

      Whether a juror is unable to continue to serve “is the kind of question

peculiarly suited to the exercise of discretion by the trial judge.” United States v.

Echavarria-Olarte, 904 F.2d 1391, 1395 (9th Cir. 1990). Although the original

juror was willing to complete her jury service, the district court observed not only

her cough, but the other jurors’ reactions to her cough. The district court’s

determination that the cough’s distraction to both the juror herself and the other

jurors required the substitution of an alternate juror “is one that a rational jurist

could have made based on the record presented to him.” See United States v.

Bonas, 344 F.3d 945, 948 (9th Cir. 2003).

      AFFIRMED.
