                                                                             FILED
                            NOT FOR PUBLICATION                              JUN 25 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA                          No. 12-50435

              Plaintiff-Appellee,                 D.C. No. CR 11-00780-GW

  v.
                                                  MEMORANDUM*
MARKEY RAYMOND OLLOQUE,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                      George Wu, District Judge, Presiding

                         Argued and Submitted June 4, 2014
                               Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.**

       Markey Olloque (“Olloque”) was convicted of possession with intent to

distribute at least five grams of methamphetamine, see 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(viii), possession of a firearm in furtherance of a drug trafficking crime, see

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm and ammunition by a

convicted felon, see 18 U.S.C. § 922(g)(1). Olloque was sentenced to fifteen years

in custody. This appeal followed.

      1.     During defense counsel’s voir dire, one prospective juror indicated that

she was “bother[ed]” by the reasonable doubt standard and another juror indicated that

he or she “partly agree[d]” with the first juror. After defense counsel asked each juror

if they could set aside their personal feelings and apply the appropriate legal

standards, neither juror indicated any unwillingness or inability to do so. Moreover,

the district court extensively discussed the reasonable doubt standard throughout the

voir dire proceedings and questioned the jurors about their ability to set aside personal

opinions and follow the court’s instructions. The record does not indicate that defense

counsel moved to excuse the jurors for cause or exercised any peremptory challenge

with respect to those jurors.

      Under these circumstances, Olloque failed to meet his burden to “show that the

evidence of partiality before the district court was so indicative of impermissible juror

bias that the court was obliged to strike [the prospective juror] from the jury, even

though neither counsel made the request.” See United States v. Mitchell, 568 F.3d

1147, 1151 (9th Cir. 2009). Indeed, Olloque did not move to dismiss the jurors for

cause and, because defense counsel failed to identify the prospective jurors by number


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for the record, Olloque cannot even show that either prospective juror was seated on

the petit jury.

       2.     When police officers arrived to search his hotel room, Olloque retrieved

a loaded handgun and a bag of methamphetamine and threw both objects out of his

hotel room’s bathroom window in the approximately 2.5 minutes that elapsed from

when officers first knocked on the door and when Olloque and his girlfriend came out

of the bathroom. In the hotel room, officers discovered $210 in United States

currency, a methamphetamine pipe, ten .38 caliber special bullets, two digital scales,

one mechanical scale, a switchblade, eleven .22 caliber bullets contained in a safe, a

camouflaged handgun holster, a black buck knife, and false identification documents.

Olloque had been staying at the hotel for approximately three weeks and the front

desk clerk testified that various people would frequently come up to Olloque’s room,

but would not stay long. An expert witness also testified that guns and knives are

commonly used by drug dealers for protection, and that drug dealers often have fake

identification cards so as to conceal their true identities from law enforcement. Under

these circumstances, viewing the evidence and drawing the inferences in the light

most favorable to the prosecution, the jury could have found the “in furtherance of”

element of 18 U.S.C. § 924(c) to be satisfied beyond a reasonable doubt. See Jackson




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v. Virginia, 443 U.S. 307, 319 (1979); United States v. Hector, 474 F.3d 1150,

1157-58 (9th Cir. 2007).

        3.   Finally, Olloque failed to file a timely written response after the

prosecutor filed an information alleging that he had three prior felony drug

convictions, see 21 U.S.C. § 851, including a conviction for possession of a controlled

substance while armed with a firearm in violation of California Health and Safety

Code § 11370.1. Any challenge not raised by response to an information is waived

unless good cause for failing to do so is shown. See 21 U.S.C. § 851(c)(2); United

States v. Stephens, 35 F.3d 451, 453 (9th Cir. 1994). No such showing has been made

here.    Indeed, Olloque stipulated that he was convicted of the felony and

acknowledged the conviction in the sentencing hearing.

        AFFIRMED.




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