                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 16 2012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. 08-10336

              Plaintiff - Appellee,              D.C. No. 1:05-cr-00482-OWW

  v.
                                                 MEMORANDUM *
RON VAUGHN,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Oliver W. Wanger, Senior District Judge, Presiding

                      Argued and Submitted January 18, 2012
                            San Francisco, California

Before: McKEOWN, CLIFTON, and BYBEE, Circuit Judges.

       Ron Vaughn appeals his conviction and sentence following a jury trial.

Because the parties are familiar with the factual and procedural history of this case,

we do not repeat it here. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court concluded that there was probable cause to issue a search

warrant, and its conclusion, following an extensive Franks hearing, was not in

error. The warrant was more extensive than merely listing the file titles and

provided sufficient information to support the district court’s conclusion that there

was “a fair probability” that the officials might discover evidence of criminal

activity. See United States v. Gourde, 440 F.3d 1065, 1073 (9th Cir. 2006) (en

banc) (noting that Illinois v. Gates, 462 U.S. 213 (1983), does not compel the

government to provide more facts than necessary to show a “fair probability” that

the defendant has committed a crime).

      It was also within the district court’s discretion to permit the government’s

cross-examination during the Franks hearing. See United States v. Vasquez, 858

F.2d 1387, 1392 (9th Cir. 1988) (citation omitted). Because the direct testimony

put at issue statements in the search warrant and statements that may have been

made to the police, the district court did not abuse its discretion in permitting

cross-examination on these topics. In addition, Vaughn chose to take the stand,

and topics relating to his “credibility [were] properly subject to exploration.”

Arredondo v. Ortiz, 365 F.3d 778, 783 (9th Cir. 2004).

      The district court did not abuse its discretion in admitting Vaughn’s prior

statement under Federal Rule of Evidence 404(b). This statement constituted a


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party admission and was not hearsay. Fed. R. Evid. 801(d)(2). The district court

concluded that the proffered evidence went to a material issue and was offered to

show “intent, knowledge or absence of mistake.” Also, because we have declined

to adopt an inflexible rule regarding remoteness in the context of Rule 404(b),

United States v. Vo, 413 F.3d 1010, 1019 (9th Cir. 2005), the district court did not

abuse its discretion in concluding that the temporal link was not too attenuated, nor

in finding the proffered evidence similar enough to be probative of the charged

conduct. Any claimed prejudicial effect was limited through a protective

admonition at the time the evidence was presented, as well as prior to jury

deliberation. United States v. Hadley, 918 F.2d 848, 852 (9th Cir. 1990).

      The district court did not violate the separation of powers doctrine by

applying sentencing enhancements promulgated by Congress, where the

Sentencing Commission was required to incorporate the enhancements without

first conducting rigorous empirical research and analysis. Congress retains the

ultimate authority over the Guidelines, and, consistent with that authority, may

require the Commission to implement its directives. See United States v.

Henderson, 649 F.3d 955, 963 n.3 (9th Cir. 2011) (“That Congress has the

authority to issue sentencing directives to the Commission is established beyond

peradventure.”).


                                          3
      Despite the district court’s statement that “as a coordinate branch of

government, [it did not] make the law. . . . And [it did] owe comity and respect to

the legislative branch of government,” we conclude that the district court

understood, appreciated, and exercised its discretion under Kimbrough v. United

States, 128 S. Ct. 558 (2007), to deviate from the Sentencing Guidelines. The

district court reiterated that it was imposing a sentence it believed to be sufficient

and no more than necessary to impose just punishment.

      The penultimate challenge—that the sentence was substantively

unreasonable—also fails. We review the substantive reasonableness of sentences

for abuse of discretion and must give due deference to the district court’s decision.

Gall v. United States, 128 S. Ct. 586, 597 (2007). The district court followed the

order of analysis we laid out in United States v. Carty, 520 F.3d 984, 991-92 (9th

Cir. 2008) (en banc). Acknowledging that the Sentencing Guidelines are advisory

and must be calculated and applied as one sentencing factor, the district court first

determined the appropriate Guidelines calculation. It then considered all of the 18

U.S.C. § 3553(a) factors, and imposed a sentence at the lower end of the

Guidelines range. In light of the circumstances, the sentence was not substantively

unreasonable.




                                           4
      Finally, we do not address the claims that trial counsel provided ineffective

assistance. These claims normally should be raised in habeas proceedings and the

record before us is not sufficiently developed to permit review and determination

of this issue. United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003).

AFFIRMED.




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