                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 07 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30048

               Plaintiff - Appellee,             D.C. No. 2:07-CR-00179-EJL-5

  v.
                                                 MEMORANDUM *
VIRGIL L. BURRIS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                               Submitted May 5, 2010 **
                                  Portland, Oregon

Before:        KOZINSKI, Chief Judge, KLEINFELD and IKUTA, Circuit
               Judges.

       The district court didn’t err in allowing Burris’s counsel to withdraw the

motions to compel and to sever. Although a defendant has the right “to 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

certain fundamental decisions” in his case, the withdrawal of the motions here was

not such a decision. Jones v. Barnes, 463 U.S. 745, 751 (1983).

      The district court also correctly denied the motion for acquittal because there

was sufficient evidence that Burris was a member of the conspiracy and

responsible for the distribution of 500 grams of methamphetamine. See United

States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999). Determining whether

Swan’s testimony was credible is precisely the sort of judgment reserved for the

jury that we will not reconsider. See United States v. Yossunthorn, 167 F.3d 1267,

1270 (9th Cir. 1999). Burris’s selective quotation of the district court’s statement

at sentencing doesn’t show that Swan’s testimony is “incredible or insubstantial on

its face.” Id. (internal quotation marks omitted).

      Venue was proper in Idaho because controlled purchases of

methamphetamine occurred there. See United States v. Meyers, 847 F.2d 1408,

1411 (9th Cir. 1988). Burris cites Federal Rule of Criminal Procedure 5(c)(2), but

this rule governs initial appearances, not trial venues.


      AFFIRMED.
