                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 25 2009

                                                                        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,                        Nos. 08-10266 and 08-10400

             Plaintiff - Appellee,               D.C. No. CR 05-01424-001-RCC
                                                 (HCE)
  v.

JORGE BRETON-RODRIGUEZ,                          MEMORANDUM *

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                    Argued and Submitted September 14, 2009
                            San Francisco, California

Before: SCHROEDER, REINHARDT and HAWKINS, Circuit Judges.

       Jorge Breton-Rodriguez (“Breton-Rodriguez”) appeals his conviction and

sentence for attempted manslaughter and assault, arguing that the district court erred

in: permitting the use of his confession—taken in violation of Miranda—to impeach

the defendant’s insanity expert; finding Breton-Rodriguez was not entitled to a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
reduction in his offense level under the Guidelines for acceptance of responsibility;

and considering acquitted conduct in calculating his sentence in violation of his Sixth

Amendment rights. He also appeals the court’s restitution order, arguing the court

was without jurisdiction to issue it after his timely appeal.

A.    Conviction and sentence

      In challenging his conviction, Breton-Rodriguez first urges us to consider

whether James v. Illinois, 493 U.S. 307 (1990), permits the use of an unMirandized

but voluntary statement to impeach a witness other than the defendant. Because he

opened the door during the direct examination of Dr. Barry Morenz, under Ohler v.

United States, 529 U.S. 753 (2000), Breton-Rodriguez waived the right to challenge

the impeachment on appeal.

      In sentencing Breton-Rodriguez, the district court did not clearly err when it

denied him a downward departure for an acceptance of responsibility. While Breton-

Rodriguez did express remorse during his sentencing hearing, the district court

correctly based its determination on Breton-Rodriguez’s pre-trial conduct and

statements, and not on his statements in his sentencing hearing. See U.S.S.G. § 3E1.1

n.2 (the “determination that a defendant has accepted responsibility [is] based

primarily upon pre-trial statements and conduct”) (emphasis added).




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       The use of acquitted conduct to support a sentencing enhancement is permitted

if such conduct has been proven by a preponderance of the evidence. United States

v. Watts, 519 U.S. 148, 157 (1997). Here, Breton-Rodriguez’s acquittal for the Use

of a Firearm During a Crime of Violence, 18 U.S.C. § 924(c), does not preclude the

court’s finding by a preponderance of the evidence for purposes of sentencing that he

used and discharged the firearm in question. See United States v. Mercado, 474 F.3d

654, 657 (9th Cir. 2007). Therefore, the district court did not err in using Breton-

Rodriguez’s acquitted conduct for sentencing purposes.

B.     Restitution Order

       Breton-Rodriguez’s filing of his first notice of appeal did not divest the district

court of jurisdiction over issuing its amended restitution order, because for all

practical purposes, the district court in its first order did not enter a restitution amount.

See United States v. Ortega-Lopez, 988 F.2d 70, 72 (9th Cir. 1993) (an appeal divests

the district court of its jurisdiction over only those aspects of the case included in that

appeal). Although the first written judgment had an entry of “0” under restitution, the

district judge stated unambiguously that the government had 90 days to submit a

restitution figure. The court then issued a second restitution order once it had the

information requested from the government. Cf. United States v. Najjor, 253 F.3d 979




                                             3
(9th Cir. 2001) (involving two distinct restitution orders with amounts greater than

$0).

       The district court in its second order delegated restitution duties to the probation

officer. While we have approved delegation to a probation officer of “the task of

determining the method of payment for restitution,” United States v. Signori, 844 F.2d

635, 641 (9th Cir. 1988), we have held that “[u]nder the [Mandatory Victims

Restitution Act], the district court is ultimately responsible for setting a schedule for

making restitution.” United States v. Gunning, 339 F.3d 948, 949 (9th Cir. 2003); see

also United States v. Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008); United States v.

Betts, 511 F.3d 872, 877 (9th Cir. 2007). Here, the district court’s order provided

that“[r]estitution payments shall be paid at the discretion of the probation officer.”

       Given the court’s delegation of the payment schedule, we remand the restitution

order to the district court to establish a payment schedule while taking into

consideration our case law concerning delegation of such matters.

C.     Conclusion

       Having opened the door during direct examination, Breton-Rodriguez waived

the right to challenge on appeal the impeachment of his expert. Thus, we affirm the

conviction. We also affirm the sentencing determination and use of acquitted conduct




                                             4
to sentence Breton-Rodriguez, but remand the restitution order so that the district judge

may establish a payment schedule.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




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