                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 14 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50074

              Plaintiff - Appellee,              D.C. No. 3:11-cr-05687-AJB-2

  v.
                                                 MEMORANDUM*
ENRIQUE MERCADO-CUEN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                            Submitted January 8, 2014**
                               Pasadena, California

Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.

       1. The district court did not plainly err by admitting testimony concerning

the threat made against one of the government’s witnesses. It’s true, as Mercado-

Cuen argues, that he did not make the threat himself. But Mercado-Cuen did make


        *
             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).
                                                                            Page 2 of 2
statements suggesting that he had encouraged or approved of the threat, and those

statements were relevant because they tended to show consciousness of guilt. See

United States v. Meling, 47 F.3d 1546, 1557 (9th Cir. 1995). The probative value

of the testimony outweighed any danger of unfair prejudice. Evidence of an

attempt to intimidate a witness is “second only to a confession in terms of

probative value” regarding consciousness of guilt. Id.

      2. The district court did not abuse its discretion at sentencing. Contrary to

Mercado-Cuen’s argument, the court did not attach a presumption of

reasonableness to the Guidelines range or give undue weight to that range. See

United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc). Instead, the

court repeatedly stated that the base offense level was advisory and properly

“treated the Guidelines range as a baseline, and moved from there to tailor a

sentence to the individualized offense and offender characteristics.” Id.

      AFFIRMED.
