                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 15 2014

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



                            FOR THE NINTH CIRCUIT


JASON MARR,                                      No. 13-35189

              Petitioner - Appellant,            D.C. Nos. 1:12-cv-00185-BLW
                                                           1:10-cr-00182-BLW-5
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                           Submitted October 9, 2014**
                              Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

       Appellant Jason Marr appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate his plea of guilty to one count of conspiracy to distribute

500 grams or more of methamphetamine. Marr contends that law enforcement


        *
             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).
withheld impeachment evidence from him in violation of Brady v. Maryland, 373

U.S. 83, 87 (1963). We review de novo a district court’s denial of defendant’s 28

U.S.C. § 2255 motion and we review for clear error its factual findings. United

States v. Guess, 203 F.3d 1143, 1145 (9th Cir. 2000). We affirm.

      To determine whether a Brady violation has occurred, the court considers

whether the evidence was: (1) “favorable to the accused,” (2) “suppressed by the

government,” and (3) “material to the guilt or innocence of the defendant.” United

States v. Jernigan, 492 F.3d 1050, 1053 (9th Cir. 2007) (en banc). Evidence is

material if its admission would have created a “reasonable probability” of a

different result. Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). In this

case, the Government concedes that law enforcement suppressed evidence and that

this evidence was favorable to Marr. Thus, the only issue in dispute is whether the

evidence was material.

      The Government had substantial evidence showing Marr’s participation in

the distribution conspiracy. First, surveillance officers witnessed Marr conduct

drug transactions with two methamphetamine distributors on nine separate

occasions during a 19-day period. Officers monitoring the distributors’ cell phones

also identified multiple phone calls between Marr and the distributors. Second,

these two distributors confessed to, and were willing to testify about, their


                                          2
agreement to supply Marr with four ounces of methamphetamine per week. And

finally, Marr twice confessed to purchasing methamphetamine from these

distributors and then reselling it at a profit. All of this evidence would have been

admissible through witnesses other than the persons about whom law enforcement

withheld impeachment evidence. Given the strength of the evidence against Marr

and the admissibility of the evidence through other witnesses, the district court did

not err in concluding that the withheld impeachment evidence was not material to

Marr’s decision to plead guilty.

      AFFIRMED.




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