                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 11 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 11-50479

              Plaintiff - Appellee,              D.C. No. 3:08-cr-02019-L-1

  v.
                                                 MEMORANDUM*
JOSE ALBERTO MARQUEZ, AKA Bat,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                         Argued and Submitted July 8, 2014
                               Pasadena, California

Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.

       Jose Alberto Marquez challenges his conviction for conspiracy to distribute

50 grams or more of methamphetamine and for aiding and abetting possession with

intent to distribute 50 grams or more of methamphetamine. He also appeals the

concurrent life sentences imposed for the crimes, which were mandatory due to his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          -2-
prior felony drug convictions. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      The district court did not abuse its discretion in refusing to grant a

continuance because the trial had begun, multiple continuances had already been

granted, and there was no indication that defense counsel was unprepared. See

United States v. Thompson, 587 F.3d 1165, 1173–75 (9th Cir. 2009).

      Marquez argues that the district court should have assigned him a new lawyer

after he complained about his attorney on the first day of trial and through multiple

letters to the court. For starters, we reject the Government’s suggestion that the

Local Rules prohibited the judge from considering such letters. The rules

preventing ex parte communications were not designed to prevent a prisoner from

expressing concerns about his counsel to the court. Upon receiving the letters, the

court should have notified counsel for both sides and conducted an inquiry into

Marquez’s allegations. Nonetheless, the court’s failure to provide substitute

counsel was not an abuse of discretion or plain error. Marquez never explicitly

requested a new lawyer, but even if his complaints are construed as a motion for

substitute counsel, the request was properly denied given that the trial was

underway, Marquez was given the opportunity to be heard, and the court

determined that defense counsel was competent and well-qualified to handle the
                                         -3-
case. See United States v. Prime, 431 F.3d 1147, 1154–56 (9th Cir. 2005). Further,

Marquez fails to point to anything in the record suggesting that counsel did not

effectively represent him.

      Reviewing the issue de novo, see United States v. Bennett, 621 F.3d 1131,

1135 (9th Cir. 2010), we reject Marquez’s challenge to the sufficiency of the

evidence. A rational trier of fact could have relied on the testimony of the

prosecution’s expert and concluded beyond a reasonable doubt that the crimes

involved 50 grams or more of actual methamphetamine. See Jackson v. Virginia,

443 U.S. 307, 319 (1979).

      The admission of expert testimony regarding the Mexican Mafia and

Marquez’s membership in that organization was not an abuse of discretion. See

United States v. Serang, 156 F.3d 910, 915 (9th Cir. 1998). The evidence was

relevant, Fed. R. Evid. 402, its probative value outweighed any prejudicial effect,

Fed. R. Evid. 403, and it was an appropriate subject for expert testimony, see Fed.

R. Evid. 702; United States v. Rodriguez, No. 12-50132, 2014 WL 2766197, at *14

(9th Cir. June 19, 2014) (permitting expert testimony regarding hierarchy of

Mexican Mafia). Under de novo review, we also conclude that the testimony did

not amount to “other crimes” evidence and was admitted for a non-character
                                        -4-
purpose. See Fed. R. Evid. 404(b); United States v. Santiago, 46 F.3d 885, 889 (9th

Cir. 1995).

      Finally, Marquez’s mandatory life sentences are not subject to reversal.

Mandatory minimum sentences do not violate due process or the Eighth

Amendment, see Harmelin v. Michigan, 501 U.S. 957, 994–96 (1991); United

States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991), and 18 U.S.C. §

3553(a) does not permit a district court to impose a sentence below the mandatory

minimum, United States v. Wipf, 620 F.3d 1168, 1169–70 (9th Cir. 2010).

      AFFIRMED.
