                               NOT FOR PUBLICATION                       FILED
                        UNITED STATES COURT OF APPEALS                   NOV 19 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


    UNITED STATES OF AMERICA,                      No. 13-10036

                Plaintiff - Appellee,              D.C. No. 2:11-cr-01622-DGC-5

      v.
                                                   MEMORANDUM*
    DOMINGO AGUSTIN-SIMON,

                Defendant - Appellant.

                       Appeal from the United States District Court
                                for the District of Arizona
                       David G. Campbell, District Judge, Presiding

                             Submitted November 16, 2015**
                                San Francisco, California

Before: THOMAS, Chief Judge and IKUTA and HURWITZ, Circuit Judges.

           After a jury trial, Domingo Agustin-Simon was convicted of conspiracy to

commit hostage taking, hostage taking, bringing in and harboring illegal aliens, and

brandishing a firearm during a crime of violence. He appeals from the convictions




*
      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).
and challenges the concurrent sentences imposed by the district court for conspiracy

to commit hostage taking and hostage taking. We affirm.

      1. The district court did not abuse its discretion in admitting testimony that

Agustin-Simon sexually assaulted a hostage. The court correctly found that this

testimony was relevant to show the victim was held against her will. The court

reasonably concluded that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice, and gave an appropriate limiting

instruction as to the jury’s use of the evidence. See Fed. R. Evid. 403; see also

United States v. Wahchumwah, 710 F.3d 862, 870–71 (9th Cir. 2012); United States

v. Rabanales-Casia, 586 F. App’x 690, 691 (9th Cir. 2014) (rejecting a similar

argument by Agustin-Simon’s co-defendant). Even if we review for abuse of

discretion rather than plain error, the district court did not abuse its discretion in

concluding that the testimony was not inadmissible Rule 404(b)(1) “other act”

evidence offered to show Agustin-Simon’s character, but rather “part and parcel of

the criminal conduct at issue.”

      2. We review the district court’s sentencing decision for abuse of discretion,

see Gall v. United States, 552 U.S. 38, 51 (2007), and find none. The district court

carefully considered all relevant factors, and imposed a below-Guidelines sentence.

See United States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (“[A] correctly

calculated Guidelines sentence will normally not be found unreasonable on


                                          2
appeal.”). The sentences did not create “unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.”

See 18 U.S.C. § 3553(a)(6).

      AFFIRMED.




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