                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAR 15 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   15-30196

              Plaintiff-Appellee,                D.C. No.
                                                 1:14-cr-02071-TOR-1
 v.

OMAR FUENTES ALARCON, AKA                        MEMORANDUM*
Omar Alarcon Fuentes,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   15-30198

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00125-TOR-2
 v.

OMAR ALARCON FUENTES, AKA
Omar Fuentes Alarcon, AKA Omar
Ramales Quintero,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, Chief Judge, Presiding

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                      Argued and Submitted February 9, 2017
                               Seattle, Washington

Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.

      A jury convicted Omar Fuentes (“Fuentes”) of knowingly distributing over

50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii). The district court denied his subsequent motions for a judgment of

acquittal and for a new trial, concluding that the evidence was neither insufficient

nor erroneously admitted. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

       In the context of a Rule 29 motion for a judgment of acquittal, we review de

novo the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158,

1163-65 (9th Cir. 2010) (en banc); Fed. R. Crim. P. 29(c). We must reject

Fuentes’s sufficiency challenge if, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979).

      Denial of a Rule 33 motion for a new trial is reviewed for abuse of

discretion. United States v. French, 748 F.3d 922, 934 (9th Cir. 2014); Fed. R.

Crim. P. 33. The district court’s “power to grant a motion for a new trial is much


                                          2
broader than its power to grant a motion for judgment of acquittal.” United States

v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992). “The district court need not view

the evidence in the light most favorable to the verdict; it may weigh the evidence

and in so doing evaluate for itself the credibility of the witnesses.” Id. (quoting

United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980)).

      1. The district court did not err in denying Fuentes’s motion for a judgment

of acquittal. There was ample evidence to support the jury’s verdict. Namely,

Deputy Hause testified that Fuentes confessed to distributing a pound of

methamphetamine on the date in question. We assume, as we must, that the jury

resolved any conflicts in the evidence in favor of the prosecution. Nevils, 598 F.3d

at 1164.

      2. As to the motion for a new trial, none of Fuentes’s arguments are

persuasive. First, the parties presented conflicting witness testimony about

whether Fuentes invoked his right to remain silent under Miranda v. Arizona, 384

U.S. 436 (1966), when Deputy Hause interrogated him. It was therefore for the

district court to determine the credibility of the witnesses, and resolve any

conflicts. We decline to disturb that determination in the absence of any

identifiable error. United States v. Bhagat, 436 F.3d 1140, 1146 n.3 (9th Cir.

2006) (“It is the province of the trier of fact ‘to determine the credibility of


                                            3
witnesses, resolve evidentiary conflicts, and draw reasonable inferences from

proven facts.’” (quoting United States v. Magallon-Jimenez, 219 F.3d 1109, 1114

(9th Cir. 2000))).

      Second, the district court did not abuse its discretion in allowing the

prosecutor to admit Fuentes’s statements to Deputy Hause. The statements were

used to prove the quantity, price, and source of the methamphetamine, not as

propensity evidence. See United States v. Melvin, 91 F.3d 1218, 1222-23 (9th Cir.

1996); Fed. R. Evid. 404(b).1

      Third, the Government did not commit prosecutorial misconduct in eliciting

testimony of Fuentes’s statements to Deputy Hause. On the first day of trial,

defense counsel raised the Rule 404(b) issue (again) and the district court ruled that

the statements were admissible.2

      Finally, we decline to consider Fuentes’s ineffective assistance of counsel

argument. Generally, we do not review ineffective assistance of counsel claims on

direct appeal unless one of two “extraordinary exceptions” applies: either 1) the


      1
        We review de novo whether evidence falls within the scope of Rule 404(b)
of the Federal Rules of Evidence, which prohibits propensity evidence. United
States v. DeGeorge, 380 F.3d 1203, 1219 (9th Cir. 2004).
      2
        We review de novo whether any prosecutorial misconduct occurred.
United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015), cert. denied, 137 S.
Ct. 36 (2016).
                                          4
record is sufficiently developed, or 2) counsel was obviously ineffective. United

States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). Neither exception applies

here.

        AFFIRMED.




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