                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 03 2012
                   UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                           FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50115

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00879-DSF-1

  v.
                                                 MEMORANDUM *
OLUFEMI KAREEM KOTUN, AKA
G.S.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted June 6, 2012
                              Pasadena, California


Before:       KOZINSKI, Chief Judge, TROTT and THOMAS, Circuit Judges.

       1. Federal law prohibits taking bank property “by force and violence, or by

intimidation, . . . from the person or presence of another.” 18 U.S.C. § 2113(a).

The district court’s response to Jury Note Number 3 tracks this language, but

Kotun claims it misstates the law because it allows conviction “even if the person

from whom the money is taken is a co-conspirator.” But section 2113(a) prohibits

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                   Page 2

taking property by force from “another,” a term broad enough to include a

co-conspirator. See United States v. Vought, 69 F.3d 1498, 1502 (9th Cir. 1995)

(co-conspirators can be victims, justifying enhancement under Sentencing

Guidelines § 3A1.3).


         2. The testimony Kotun challenges was probative of the witnesses’

credibility on a key issue at trial and carried little risk of unfair prejudice. This

isn’t “the rare exception when a district court’s decision to admit evidence under

Rule 403 constitutes plain error.” United States v. Rizk, 660 F.3d 1125, 1132 (9th

Cir. 2011) (internal quotation marks omitted). For the same reasons, the district

court didn’t abuse its discretion in rejecting Kotun’s prosecutorial misconduct

claim. See United States v. Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir.

2012).


         3. Kotun claims the district court procedurally erred at sentencing by failing

to consider mitigating evidence he presented. The record shows that the court

considered Kotun’s evidence but didn’t find it “particularly mitigating.” As Kotun

concedes, the court “was free to say that it wasn’t swayed by the information that

the defense had presented.”

         Kotun also claims the district court erred by giving him a longer sentence

than it gave Randall, his co-conspirator. The court was required to consider “the
                                                                                Page 3

need to avoid unwarranted sentence disparities” between similarly situated

defendants. 18 U.S.C. § 3553(a)(6). But Randall pleaded guilty and testified

against Kotun, so they weren’t similarly situated for sentencing purposes.

Moreover, “Congress’s primary goal in enacting § 3553(a)(6) was to promote

national uniformity in sentencing . . . ,” United States v. Saeteurn, 504 F.3d 1175,

1181 (9th Cir. 2007) (emphasis added and internal quotation marks omitted), so the

district court didn’t err by considering the sentences imposed on similarly situated

defendants nationwide.

      Nor did the district court abuse its discretion by imposing a sentence greater

than the national means and median cited by Kotun. The court imposed a sentence

at the bottom of the applicable Sentencing Guidelines range. “‘[A]voidance of

unwarranted disparities was clearly considered by the Sentencing Commission

when setting the Sentencing Guidelines ranges. Since the district judge correctly

calculated and carefully reviewed the Guidelines range, he necessarily gave

significant weight and consideration to the need to avoid unwarranted disparities.’”

United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir. 2010) (alteration in

original) (quoting Gall v. United States, 552 U.S. 38, 54 (2007)).


      AFFIRMED.
