                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 19 2012

                                                                        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. 11-50462

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02920-WQH-1

  v.
                                                 MEMORANDUM *
JUAN CARLOS FLORES-ACUNA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                     Argued and Submitted December 3, 2012
                              Pasadena, California

Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.

       Juan Carlos Flores-Acuna was arrested at the Otay Mesa Port of Entry while

attempting to enter the United States from Mexico in a 2005 Chevrolet Silverado

truck, in which border patrol agents found approximately 3.56 kilograms of

methamphetamine. Flores-Acuna was convicted and sentenced under 21 U.S.C. §§



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
841(a)(1), 952 and 960, and appeals the district court’s denial of his motion for a

new trial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Flores-Acuna filed a motion for a new trial based on alleged newly-

discovered evidence in the form of a post-trial psychological evaluation. “We

review a district court’s order denying a motion for a new trial made on the ground

of newly discovered evidence for abuse of discretion.” United States v. Hinkson,

585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). The district court correctly

identified the standard for evaluating a motion for a new trial based on newly

discovered evidence. See United States v. Harrington, 410 F.3d 598, 601 (9th Cir.

2005). After reviewing the record as a whole, we conclude that the district court

did not abuse its discretion in denying Flores-Acuna’s motion because nothing

prevented defense counsel from requesting such an evaluation before trial, and the

psychiatric evaluation was not evidence which would show that a new trial would

probably result in acquittal.

      We do not address Flores-Acuna’s appeal of his sentence, because, although

he raised the issue in his opening brief, he did not offer any argument with respect

to it. See United States v. Alonso, 48 F.3d 1536, 1544-45 (9th Cir. 1995).

      AFFIRMED.




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