                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             OCT 15 2014

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

UNITED STATES OF AMERICA,                       No. 13-50291

              Plaintiff - Appellee,             D.C. No. 3:12-cr-01929-L-1

  v.
                                                MEMORANDUM*
ISAI JOSE SAAIB,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Southern District of California
                M. James Lorenz, Senior District Judge, Presiding

                           Submitted October 9, 2014**
                              Pasadena, California

Before: HAWKINS and GRABER, Circuit Judges, and SEDWICK,** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
      Isai Jose Saaib (“Saaib”) appeals his conviction and sentence for bringing in

illegal aliens for financial gain and bringing in illegal aliens without presentation, in

violation of 8 U.S.C. § 1324(a)(2)(B)(ii) & (iii).

      “As a general rule, we do not review challenges to the effectiveness of defense

counsel on direct appeal,” and neither of the “extraordinary exceptions” to that rule

applies here. United States v. Labrada-Bustamante, 428 F.3d 1252, 1260 (9th Cir.

2005) (internal quotation marks and brackets omitted).

      There was no abuse of discretion in giving Ninth Circuit Model Jury Instruction

3.9, a general instruction on how juries should evaluate witness credibility, rather than

Model Instruction 4.9, which governs “Testimony of Witnesses Involving Special

Circumstances–Immunity, Benefits, Accomplice, Plea.” The district court properly

recognized that the material witness—the alien found in Saaib’s vehicle—was not an

accomplice to the crime who could have been indicted for the same offense as an

accessory or principal. Guam v. Dela Rosa, 644 F.2d 1257, 1260-61 (9th Cir. 1981)

(per curiam). Nor did the district court clearly err by finding there was no evidence the

witness had received immunity or benefits in exchange for his testimony.

      In any event, the general instruction was legally adequate and advised the jury

to consider “the witness’ interest in the outcome of the case and any bias or prejudice,”

and the alien’s testimony was not the only strong evidence of guilt. See United States


                                           2
v. Holmes, 229 F.3d 782, 787-88 (9th Cir. 2000); see also United States v. Shipsey, 363

F.3d 962, 968 (9th Cir. 2004) (“Where the instruction actually given was legally

sufficient, a defendant cannot successfully contend that declining to use his specific

formulation was an abuse of discretion.”).1

      Finally, the district court did not err by concluding it lacked the authority to

sentence Saaib to home or community confinement to satisfy a portion of the three-

year mandatory minimum sentence of imprisonment under 8 U.S.C. §

1324(a)(2)(B)(ii). Our precedent is clear that “the [district] court has no jurisdiction

to select the place where the sentence will be served. Authority to determine place of

confinement resides in the executive branch of the government and is delegated to the

Bureau of Prisons [“BOP”].” United States v. Ceballos, 671 F.3d 852, 855 (9th Cir.

2011) (per curiam) (internal quotation marks and alteration omitted); see also 18

U.S.C. §§ 3621(b), 3624; Rodriguez v. Smith, 541 F.3d 1180, 1184–88 (9th Cir. 2008)

(recognizing that § 3621(b) gives the BOP authority and discretion to allow inmate to

serve all or part of sentence in community confinement). Thus, although the district

court may recommend that a portion of the mandatory custodial sentence be served in

community confinement (as the judge did here), the decision whether and when to



      1
        Because Saaib does not establish any error at trial, his cumulative error claim
necessarily also fails. United States v. Karterman, 60 F.3d 576, 579 (9th Cir. 1995).
                                           3
transfer the prisoner remains within the exclusive control of the BOP. See, e.g.,

Ceballos, 671 F.3d at 855-56 & n.2 (while district court may make a non-binding

housing recommendation to the BOP, court of appeals lacks jurisdiction to review

either the recommendation or the failure to make one).

      AFFIRMED.




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