                                                                                      FILED
                               NOT FOR PUBLICATION                                     FEB 15 2011

                                                                                  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. 10-30133

                Plaintiff - Appellee,                   D.C. No. 3:09-cr-279-MO

   v.
                                                        MEMORANDUM *
 ODELL TONY ADAMS,

                Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Oregon
                     Michael W. Mosman, District Judge, Presiding

                         Argued and Submitted January 13, 2011
                                  Seattle, Washington

Before:        GRABER and M. SMITH, Circuit Judges, and BREYER,** District
               Judge.

        Defendant -Appellant Odell Tony Adams appeals from a judgment of

conviction and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

        Adams raises three claims of error. First, that a mistrial should have been

          *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
                The Honorable Charles R. Breyer, United States District Judge for the Northern
District of California, sitting by designation.
declared because of prosecution statements during rebuttal that allegedly shifted

the burden of proof to Adams. Second, that the district court should not have

accepted the verdict because of an outstanding question from the jury. Third, that

the district court procedurally and/or substantively erred in imposing the sentence.

      With respect to Adams’s first claim of error, the district court did not abuse

its discretion in declining to grant a mistrial because the prosecution’s rebuttal

pointing out a lack of evidence to support various defense theories of the case did

not cross the line from permissible advocacy to impermissible burden shifting.

See United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991); United States v.

Segna, 555 F.2d 226, 230 (9th Cir. 1977).

      Nor is there reversible error in the district court’s decision to accept the

verdict notwithstanding an outstanding jury question that the district court did not

have an opportunity to respond to before the jury returned its verdict. The district

court proposed to tell the jurors in response to their question that it could not

provide any further instruction because the issues they inquired about were up to

them to decide. Both counsel agreed to this approach. The court’s failure to

respond was not structural error because the jury’s note did not reveal “actual

confusion about the law.” Beardslee v. Woodford, 358 F.3d 560, 575 (9th Cir.

2004). The practical effect of what actually happened (the jury was provided no



                                           2
further instruction) is identical to what the parties agreed to (the district court

telling the jurors that they would be provided no further instruction). Accordingly,

Adams could not have been prejudiced.

      Finally, there was no sentencing error. The district court considered

Adams’s history and characteristics explicitly, thereby avoiding procedural error,

and the resulting sentence was reasonable. See United States v. Carty, 520 F.3d

984, 991-94 (9th Cir. 2008) (en banc).

      AFFIRMED.




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