                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 14 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-10159

              Plaintiff-Appellee,                D.C. No. 1:13-cr-01039-HG-1

 v.
                                                 MEMORANDUM*
GILBERT LEE MEDINA,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Helen W. Gillmor, District Judge, Presiding

                          Submitted February 12, 2018**
                               Honolulu, Hawaii

Before: O’SCANNLAIN, CLIFTON, and IKUTA, Circuit Judges.

      After a jury trial, Gilbert Medina was found guilty of multiple offenses and

sentenced to life imprisonment. Medina argues that the district court allowed




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
improper witness testimony and that his sentence violates the Eighth Amendment.

We affirm.

1.    The district court did not abuse its discretion when it allowed testimony

about an effort to collect Medina’s drug debt. See United States v. Preston, 873

F.3d 829, 835 (9th Cir. 2017). While the personal knowledge requirement of Fed.

R. Evid. 602 does not allow a witness to “speculate, guess, or voice suspicions,” it

does allow “opinions and inferences grounded in observations and experience.”

United States v. Whittemore, 776 F.3d 1074, 1082 (9th Cir. 2015) (internal

quotation marks and citation omitted); see also Fed. R. Evid. 602. At trial, a

coconspirator testified about her knowledge of and involvement with the drug

conspiracy, including delivering narcotics to Medina and her attempt to collect

money from him for prior drug transactions. Her testimony was based upon

“inferences grounded in observations and experience,” and was not improper. See

Whittemore, 776 F.3d at 1082 (citation omitted). Moreover, because the testimony

was “offered against an opposing party and . . . was made by the party’s

coconspirator during and in furtherance of the conspiracy,” it was not hearsay.

Fed. R. Evid. 801(d)(2)(E).

      Nor did the district court abuse its discretion when it admitted testimony

about drugs found at another coconspirator’s house. Along with Medina’s written


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confession, up to nine packages sent between Medina and the coconspirator from

December 2012 to March 2013, and other evidence in the record, the testimony

was relevant to whether the coconspirator was Medina’s drug source. See Fed. R.

Evid. 401. The coconspirator did not need to be named in Medina’s indictment in

order for the testimony about the drugs to be admitted. See United States v.

Sangmeister, 685 F.2d 1124, 1126-27 (9th Cir. 1982).

       Finally, any improper testimony was harmless error. See United States v.

Edwards, 235 F.3d 1173, 1178 (9th Cir. 2000) (“Such decisions will be reversed

for an abuse of discretion only if such nonconstitutional error more likely than not

affected the verdict.”). The jury heard testimony from six coconspirators,

testimony about Medina’s signed confession, and a recording of Medina planning a

drug transaction. It is clear that any error did not affect the verdict.

2.     Medina’s challenges to his life sentence also fail. At every stage of the

proceedings the Government explained that it would seek a 21 U.S.C. § 851

enhancement if it had the necessary state court documents, and it updated Medina

and the district court on its progress in acquiring the documents. The

Government’s effort to seek the enhanced sentence was not vindictive or

retaliatory.




                                            3
      Medina’s claim that his sentence violates the Eighth Amendment is

foreclosed by our precedent. See United States v. Jensen, 425 F.3d 698, 708 (9th

Cir. 2005) (affirming a sentence of life imprisonment without the possibility of

parole for a drug conviction); see also Miller v. Gammie, 335 F.3d 889, 893 (9th

Cir. 2003) (en banc) (holding that a three-judge panel is bound by circuit precedent

unless “the reasoning or theory of our prior circuit authority is clearly

irreconcilable with the reasoning or theory of intervening higher authority”).

      AFFIRMED.




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