                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 11 2009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,                        No. 08-10474

             Plaintiff - Appellee,               D.C. No. 4:07-cr-00377-FRZ-JJM

  v.
                                                 MEMORANDUM *
THEODORE MANDY JOSE, Jr.,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                     Argued and Submitted December 7, 2009
                            San Francisco, California

Before: O’SCANNLAIN, RAWLINSON, and BEA, Circuit Judges.

       Appellant Theodore Mandy Jose, Jr. (Jose) challenges his conviction and

sentence of fifty-one months’ imprisonment.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The district court did not plainly err when it allowed the government

to cross-examine Jose regarding his guilty plea in tribal court. Plain-error analysis

applies because the district court’s ruling on Jose’s motion in limine was not

“explicit and definitive,” and Jose failed to raise a contemporaneous objection

during trial. Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986).

When Jose testified that he was in tribal custody, the government could

permissibly use that opening to present evidence favorable to its case. See United

States v. Sine, 493 F.3d 1021, 1037 (9th Cir. 2007), as amended. The guilty plea

was an admission by a party-opponent of his having assaulted the victim. See Fed.

R. Evid. 801(d)(2)(A).




      2.     The district court did not err when it denied Jose’s motion to suppress

statements made to Detective Rosales. Detective Rosales warned Jose that his

statements could be used against him in court. She was not required to specifically

warn Jose that his statements could be used against him in a federal prosecution.

See United States v. Male Juvenile, 280 F.3d 1008, 1022-23 (9th Cir. 2002).




                                     Page 2 of 3
      3.     The district court’s imposition of fifty-one months’ imprisonment was

substantively reasonable.1 Considering the totality of circumstances, the district

court imposed a sentence within the applicable sentencing range and adequately

explained its reasoning. See United States v. Bendtzen, 542 F.3d 722, 729 (9th Cir.

2008) (holding that a sentence within a properly calculated guideline range is

usually reasonable).

      AFFIRMED.




      1
       Jose does not contend that the sentencing calculation was procedurally
defective. See United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008).

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