                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2011

                                                                        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. 10-50415

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00380-VAP-1

  v.
                                                 MEMORANDUM *
CHRISTOPHER INOUE, etc.,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted December 5, 2011
                              Pasadena, California

Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
Judge.**

       Defendant Christopher Inoue (“Inoue”) appeals his conviction and 144-

month sentence for conspiracy to commit an assault with a dangerous weapon,


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


        **
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
with intent to do bodily harm, and to commit an assault resulting in serious bodily

injury, in violation of 18 U.S.C. § 371; assault with a dangerous weapon, with

intent to do bodily harm, in violation of 18 U.S.C. § 113(a)(3); and assault

resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6). We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

      1. The district court did not abuse its discretion in admitting color

photographs of the victim’s injuries. The photographs were not unfairly

prejudicial and were highly probative of several material issues in dispute. See

Fed. R. Evid. 403; see also United States v. Brady, 579 F.2d 1121, 1129 (9th Cir.

1978) (victim photographs are “inadmissible only when the picture is of such

gruesome and horrifying nature that its probative value is outweighed by the

danger of inflaming the jury.”) (internal citation omitted).

      2. The district court did not abuse its discretion in admitting out-of-court

statements into evidence as non-hearsay coconspirator statements. A statement is

not hearsay if it “was made by the party's coconspirator during and in furtherance

of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). A coconspirator’s statement “is

admissible against the defendant if the government shows by a preponderance of

the evidence that a conspiracy existed at the time the statement was made; the

defendant had knowledge of, and participated in, the conspiracy; and the statement


                                           2
was made in furtherance of the conspiracy.” United States v. Bowman, 215 F.3d

951, 960-61 (9th Cir. 2000).

      The government showed by a preponderance of the evidence that there was a

conspiracy among several inmates that members of their group would not write

notes to prison officials or other inmates that mentioned other group members, and

that failure to adhere to the rules of the group would result in retribution. The

government further showed that Inoue had knowledge of, and participated in, the

conspiracy, and that the out-of-court statements were made in furtherance of the

conspiracy. Thus, the out-of-court statements were properly admitted as non-

hearsay statements by a coconspirator.

      3. The district court did not abuse its discretion in dismissing a juror who

had two conversations with Inoue’s girlfriend during the trial and replacing the

juror with a qualified alternate before deliberations began. The district court may

replace a juror with an alternate if the original juror is “unable to perform” or is

“disqualified from performing [his or her] duties.” Fed. R. Crim. P. 24(c)(1).

Even if the district court did err, Inoue has not shown that he suffered any

prejudice. See United States v. Lustig, 555 F.2d 737, 746 (9th Cir. 1977) (“It is

difficult to see what prejudice could result from placing an alternate juror,

approved by the defendants, on the jury in place of a juror who cannot fairly


                                           3
perform his duties. The opposite would have been prejudicial.”).

      4. Finally, Inoue contends that the district court erred in imposing a two-

level obstruction of justice enhancement under application notes 4(a) and (b) of the

Sentencing Guidelines § 3C1.1. He also argues that the sentence was substantively

unreasonable because of the disparity between his sentence and his coconspirator’s

sentence. A court may only set aside a sentence if it is “procedurally erroneous or

substantively unreasonable.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.

2008) (en banc).

      Under application note 4(a) of the Sentencing Guidelines § 3C1.1, the

obstruction of justice enhancement is triggered where a defendant threatens,

intimidates or otherwise unlawfully influences a witness. Application note 4(b) is

triggered where a defendant willfully gives false material testimony. The record

supports the district court’s conclusion that Inoue threatened, intimidated, or

otherwise unlawfully influenced the victim into writing a note stating that the

victim threatened Inoue the night before the assault. Because we find that the

district court did not err in imposing the obstruction of justice enhancement based

on threats and intimidation, we do not need to reach whether the district court erred

in imposing the obstruction of justice enhancement for willfully giving false

material testimony.


                                          4
      The substantive reasonableness of a sentence is reviewed for abuse of

discretion. Gall v. United States, 552 U.S. 38, 41 (2007). After calculating the

Guidelines range, the district court considered the 18 U.S.C. § 3553(a) factors and

found that the assault was serious–it was a two-on-one fight with long-lasting and

painful consequences, and it was planned in advance. The district court further

found that the sentence was necessary to protect the safety and lives of others.

Then, the district court correctly found that Inoue did not merit a downward

variance to correct the disparity between his sentence and his coconspirator’s

sentence. Inoue and his coconspirator were not similarly situated. Inoue had a

higher criminal history category, did not accept responsibility for the assault, and

was just as culpable for the assault as his coconspirator. Furthermore, Inoue’s

coconspirator assisted the government in an important murder investigation. Thus,

the district court properly considered the 18 U.S.C. § 3553(a) sentencing factors

and crafted a sentence that was procedurally sound and substantively reasonable.

      AFFIRMED.




                                           5
