United States of America v. Albert T. Robles

1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALBERT T. ROBLES,
Defendant-Appellant.
No. 15-50133
D.C. No. 2:04-cr-1594-SVW
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted October 2, 2017
Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE, District Judge.**
Defendant-Appellant Albert Robles (“Robles”) appeals the district court’s
denial of his motion for a new trial or, in the alternative, motion for
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
FILED
OCT 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
reconsideration. We review both denials for an abuse of discretion. United
States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc) (motion for a new
trial based on newly discovered evidence); United States v. Lopez-Cruz, 730 F.3d
803, 811 (9th Cir. 2013) (motion for reconsideration). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. “Any motion for a new trial grounded on newly discovered evidence
must be filed within 3 years after the verdict or finding of guilty.” Fed. R. Crim.
P. 33(b)(1). Although the time bar is not jurisdictional, the rule “assure[s] relief to
a party properly raising [it].” Eberhart v. United States, 546 U.S. 12, 19 (2005).
The Government properly raised the time bar and is entitled to such relief because
Robles filed his motion more than three years after the verdict. Therefore, the
district court properly denied Robles’s motion for a new trial based on newly
discovered evidence.
2. The district court denied Robles’s motion for reconsideration after
finding that Robles was not diligent in presenting the evidence and that the
evidence was “newly available” instead of “newly discovered.” Robles fails to
show any error in either of these findings, much less an abuse of discretion.
Therefore, the district court properly denied Robles’s motion for reconsideration.

-- 2 of 3 --

3
3. Even if we reached the merits of Robles’s motion, Robles fails to show
that he is entitled to relief. In United States v. Garrido, 713 F.3d 985 (9th Cir.
2013), this court established the law of the case by affirming Robles’s conviction
for bribery in violation of 18 U.S.C. § 666. A three-judge panel is bound by the
prior authority unless “the reasoning or theory of our prior circuit authority is
clearly irreconcilable with the reasoning or theory of intervening higher authority.”
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). On the
interpretation of § 666, Garrido is not clearly irreconcilable with either
McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434 (2014), or McDonnell v.
United States, 136 S. Ct. 2355 (2016), because these intervening higher authorities
addressed the interpretation of statutes other than § 666.
AFFIRMED.

-- 3 of 3 --