and 01-2511 UNITED STATES OF AMERICA v. Pablo Diaz-Himely

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NOS. 01-2410 and 01-2511
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UNITED STATES OF AMERICA
v.
PABLO DIAZ-HIMELY,
Appellant No. 01-2410
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UNITED STATES OF AMERICA
v.
ARNALDO MENDINUETA-IBARRO,
Appellant No. 01-2511
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 00-cr-00176-1,-2)
District Judge: Honorable Robert J. Cindrich
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Submitted Under Third Circuit LAR 34.1(a)
March 5, 2002
Before: ALITO, RENDELL and HALL*, Circuit Judges,
(Filed: March 20, 2002)
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* Hon. Cynthia Holcomb Hall, Senior Judge of the United States Court of Appe
for the Ninth Circuit, sitting by designation.
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OPINION OF THE COURT
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RENDELL, Circuit Judge.
Defendants Diaz-Himely and Mendinueta-Ibarro have filed appeals from their
convictions and sentences in the District Court.
The District Court had jurisdiction pursuant to 18 U.S.C. 3231 and we have
jurisdiction pursuant to 18 U.S.C. 3742 (a).
Appellant Diaz-Himely objects to the admission of evidence that he failed to
notify his parole officer before traveling to New York, contending that admitting the
evidence violated Rules 403 and 404(b) of the Federal Rules of Evidence. We have
reviewed the record of the proceeding and, specifically the nature of objections lodged
by counsel, and the limiting instruction given by the court with respect to this evidence,
and do not find that the District Court abused its discretion in permitting the introduction
of this evidence for a limited purpose. Accordingly, we will AFFIRM the District
Court’s Judgment and Conviction Order as to Appellant Diaz-Himely.

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Appellant Mendinueta-Ibarro complains that the District Court improperly refused
to grant a downward departure and failed to give "substantial weight to the government’s
evaluation of the defendant." He also requests the court to permit him to withdraw his
guilty plea in order to correct a manifest injustice.
We have reviewed the record, including the District Court’s consideration of the
government’s 5K1.1 motion and conclude that the District Court’s refusal to depart
downward was based upon an exercise of discretion on the part of the court, and is thus
not reviewable on appeal. See United States v. Denardi, 892 F.2d 269, 272 (3d Cir.
1989).
We also find that a proper Rule 11 colloquy took place with respect to defendant’s
plea, and there is no basis for withdrawal of that plea. We will therefore AFFIRM the
District Court’s Judgment and Conviction Order as to appellant Mendinueta-Ibarro.
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Please file the foregoing Not Precedential Opinion.
/s/Marjorie O. Rendell
Circuit Judge

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