United States v. 2011-10-13 | 09-50285 | USA V. LENNY URENA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-50285
Plaintiff-Appellee, D.C. No.
v. 5:07-cr-00148-  VAP-1LENNY URENA,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
September 2, 2011—Pasadena, California
Filed October 13, 2011
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Michael Patrick McCuskey,
Chief District Judge.*
Opinion by Judge Gould
*The Honorable Michael Patrick McCuskey, Chief District Judge for
the U.S. District Court for Central Illinois, Urbana, sitting by designation.
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COUNSEL
Elizabeth Newman (argued), Federal Public Defender, Los
Angeles, California, for defendant-appellant Lenny Urena.
Harvinder S. Anand (argued), Michael J. Raphael, Assistant
U.S. Attorneys, Los Angeles, California, for plaintiff-appellee
United States of America.
OPINION
GOULD, Circuit Judge:
Lenny Urena appeals his jury conviction for assault with a
dangerous weapon in violation of 18 U.S.C. § 113(a)(3) and
possession of contraband in prison (a prison knife or “shank”)
in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3). First, Urena
argues that the district court abused its discretion by refusing
to instruct the jury on his theory that he acted in self-defense.
Second, Urena claims that the district court violated his Con-
frontation Clause rights by refusing to allow him to cross-
examine the treating physician about the cause of the victim’s
injuries, and that the district court erred by refusing to let him
designate the treating physician as his expert witness on cau-
sation during the trial. Finally, Urena further claims that his
sentence is substantively unreasonable because his guidelines
range sentence included “recency points,” which were
removed from the guidelines after he was sentenced. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
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I
On the morning of April 11th, 2006, federal prisoner Gary
Dennis grabbed fellow inmate Lenny Urena and called him a
“bitch.” Urena returned the insult and the two separated.
Hours later, Urena attacked Dennis by surprise, striking him
in the face. Dennis tried to disengage but Urena pursued and
struck him repeatedly from behind. Dennis eventually
grabbed Urena and wrestled him to the ground. Another
inmate, Nekis Atwater, intervened, kicking Dennis in the back
of the head and punching him at least fourteen times.
Dennis’s injuries were superficial, but he suffered lacera-
tions that required stitches. The shank that caused these inju-
ries was recovered from underneath Urena’s shoulder.
Eyewitnesses disagree about who had the shank in the fight,
Atwater or Urena. Urena confessed that the shank was his and
that he had held it during the fight.
At trial, Urena argued that Atwater attacked Dennis with
the shank, and that he confessed to possessing it because he
did not want to “snitch” on Atwater. He also argued self-
defense, claiming he was in danger because Dennis had called
him a bitch, which he contends is a serious threat in prison.
Alternatively, he argued that Dennis could have had a weapon
when Urena attacked him. The district court at first let Urena
argue self-defense in his opening statement, but later refused
to instruct the jury on self-defense, reasoning that Urena had
not established a sufficient factual foundation.
At trial, the Government called Dr. Jaime David—Dennis’s
treating physician—to testify on the nature and extent of Den-
nis’s injuries. Dr. David’s report said that the injury above
Dennis’s right eye was likely caused by a punch or a fall to
the ground, not a knife. The Government moved to preclude
Urena from asking Dr. David questions about causation, and
the court agreed to do so as long as the Government did not
open the door to that line of questioning on direct. The district
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court explained that “[t]here is a difference between the
nature of a wound and causation,” and noted that questions
about causation were outside the scope of Dr. David’s role as
a percipient witness. Urena’s subsequent attempt during the
trial to designate Dr. David as an expert was rejected by the
court.
II
[1] Urena argues that the district court erred by refusing to
give a self-defense instruction to the jury. We review for
abuse of discretion the district court’s conclusion that Urena
did not establish a factual foundation to support a jury instruc-
tion on self-defense. United States v. Duran, 59 F.3d 938, 941
(9th Cir. 1995). To be entitled to a self-defense jury instruc-
tion, a defendant must make a prima-facie case of self defense
by offering evidence to show:
(1) a reasonable belief that the use of force was nec-
essary to defend himself or another against the
immediate use of unlawful force and
(2) the use of no more force than was reasonably
necessary in the circumstances.
United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006).
[2] Under this rule the privilege of claiming self defense as
a justification for an assault is constrained by the need for an
immediate threat of unlawful force, and the need for the
action to be commensurate with the threat, with no more force
used than reasonably necessary to meet it. Urena’s primary
argument to us is that he “had to attack . . . so that no one
would think he really was a bitch.” Applying this rule, when
a person receives harsh words from another, insulting words,
demeaning words, or even fighting words, there is no privi-
lege to assault the speaker with deadly force. Stated another
way, a person insulted by a personal slur cannot stab the
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offending speaker in the neck, bash their skull with a baseball
bat, send a bullet to their heart, or otherwise deploy deadly
force in response to the insult.
[3] Urena’s being called a bitch in prison, though it might
create risk in that harsh environment did not give Urena war-
rant to attack Dennis with a prison-made knife. Urena’s being
called a bitch in prison did not justify a surprise, pre-emptive
attack using deadly force; indeed it would not have justified
an assault using much less force. See, e.g., United States v.
Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998) (holding vic-
tim’s threat to “finish what he started” later that afternoon was
not imminent); United States v. Wagner, 834 F.2d 1474, 1486
(9th Cir. 1987) (rejecting defendant’s self-defense theory
when victim was unarmed and in retreat); United States v.
Slocum, 486 F. Supp. 2d 1104, 1113-14 (C.D. Cal. 2007)
(rejecting self-defense theory when victims were unarmed and
non-threatening at time of attack).
[4] Urena also contends that he presented evidence that
could show Dennis was carrying a shank and therefore he was
defending himself against an imminent attack. But even if
Dennis possessed a knife, the evidence was undisputed that it
was Urena who was the attacker, and thus he could not in
those circumstances successfully urge a self defense theory.
The district court did not abuse its discretion in concluding
that Urena’s evidence was mere speculation and that a jury
could not rationally sustain the defense based on the evidence
presented. Wagner, 834 F.2d at 1486.
III
[5] Urena next contends that the district court erred by pre-
venting him from examining Dr. David about the cause of
Dennis’s injuries and that this violated his Confrontation
Clause rights. Federal Rule of Evidence 611(b) states a clear
rule: “Cross examination should be limited to the subject mat-
ter of direct examination and matters affecting the credibility
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of the witness.” We see no error of law, to the extent we
review de novo on a Confrontation Clause claim, United
States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007) (en
banc), by the district court’s limiting cross examination of Dr.
David to the scope of his direct testimony.
[6] We have held: “A limitation on cross-examination does
not violate the Confrontation Clause unless it limits relevant
testimony and prejudices the defendant, and denies the jury
sufficient information to appraise the biases and motivations
of the witness.” United States v. Besimon, 172 F.3d 1121,
1128 (9th Cir. 1999) (internal citations and quotations omit-
ted). The Government called Dr. David to testify only as to
the nature and extent of Dennis’s injuries. Urena’s Confronta-
tion Clause rights were not violated, as he was allowed to
cross-examine Dr. David on these issues, and on matters of
bias and motivation.
Urena alternatively argues that the trial court erred 1) by
ruling that testimony about causation of the injuries would be
expert testimony and 2) by not allowing Urena to designate
Dr. David as an expert. We review evidentiary rulings for
abuse of discretion, though we review de novo the district
court’s interpretation of the Federal Rules of Evidence.
United States v. Yida, 498 F.3d 945, 949 (9th Cir. 2007).
Urena argues that the testimony it wanted to elicit from Dr.
David was not expert testimony because a doctor’s evaluation
of an injury is intertwined with his judgment of what caused
the injury. He cites no legal authority for this argument, anal-
ogizing to the hearsay exception in Federal Rule of Evidence
803(4), which covers statements describing the cause of the
injury “insofar as reasonably pertinent to diagnosis or treat-
ment.”
[7] But other courts have held that a physician’s assess-
ment of the cause of an injury is expert testimony. See, e.g.,
United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.
2005) (“Her diagnosis of the injury itself . . . would be per-
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missible lay testimony, but her statement about the cause of
the injury was, as she admitted, a ‘hypothesis.’ And the ability
to answer hypothetical questions is the essential difference
between expert and lay witnesses.” (internal quotation and
alteration omitted)); Wills v. Amerada Hess Corp., 379 F.3d
32, 46 (2d Cir. 2004) (holding that, where the cause of an
injury would not be obvious to a lay juror, expert testimony
is required). We are persuaded, and agree with our sister cir-
cuits, that Dr. David’s opinion on issues of causation required
expert testimony.
[8] Urena’s argument that he should have been allowed
belatedly to designate Dr. David as an expert to testify on the
cause of the injuries also lacks merit. Urena could have desig-
nated and called his own medical expert, and did designate an
expert on prisons. But instead of designating a medical expert
before trial, he tried without success to designate Dr. David
as his expert once trial had begun. The district court has
ample discretion to prevent a party from designating a new
expert witness after the trial has started. The district court
held a pretrial conference and both the Government and
Urena then were free to designate their planned experts.
Urena did not at pretrial conference say that he wanted to call
Dr. David as an expert or any other medical expert, and then
he did not seek to designate Dr. David as his expert until after
the trial was underway. There is no abuse of discretion in the
district court excluding the proffer of a new expert not dis-
closed in pretrial conference or pretrial order. The district
court has broad traditional powers to manage its docket and
to manage the presentation of evidence through designated
witnesses in a trial before it. See, e.g., United States v. Grace,
526 F.3d 499, 516 (9th Cir. 2008) (en banc) (“[T]he district
court here is well within its authority to manage its docket in
enforcing a valid pretrial discovery order.”). The district court
also has unquestioned discretionary power to exclude evi-
dence that should have been produced in reciprocal discovery.
See United States v. Moore, 208 F. 3d 577, 578 (7th Cir.
2000) (“[C]ourts are entitled to exclude evidence that should
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have been produced during reciprocal discovery in criminal
cases.”) (citing Taylor v. Illinois, 484 U.S. 400 (1988)). It fol-
lows from these principles that a district court may normally
refuse to permit expert testimony from an expert not previ-
ously designated before trial in the pretrial conference. We
hold that the district court here did not abuse its discretion in
declining to permit Urena to add Dr. David as a defense wit-
ness on the causation issue during trial.
IV
[9] Finally, Urena argues that his sentence should be
vacated and remanded for re-sentencing because the Sentenc-
ing Commission has amended the guidelines to eliminate “re-
cency points” from the sentencing calculation. U.S.
Guidelines Manual, Supp. to App. C, Amend. 742 at 354-56
(2010) (“Amend. 742”). The guidelines provide that when a
change is not designated as retroactive, it is not to have retro-
active effect to reduce a prison term. See U.S. Guidelines
Manual § 1B1.10(a)(2). The change implemented by Amend-
ment 742 is not designated as retroactive. § 1B1.10(c) (not
listing Amend. 742).
Under the guidelines in place when Urena was sentenced,
the sentencing range was correctly calculated as 77-96
months. If re-calculated under the revised guidelines, his sen-
tencing range would be 63-77 months. Urena was sentenced
to only 60 months. He argues that this sentence is substan-
tively unreasonable in light of the Sentencing Commission’s
revision.
[10] We review sentencing decisions for abuse of discre-
tion. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055
(9th Cir. 2009). “Only a procedurally erroneous or substan-
tively unreasonable sentence will be set aside.” Id. at 1053
(quoting United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc)). Urena argues that his sentence is substan-
tively unreasonable in light of Amendment 742 because the
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reason for the amendment was that recency points only mini-
mally predict recidivism. See Amend. 742. But we have
recently held that failure to vary from a guidelines range sen-
tence to compensate for the inclusion of recency points after
Amendment 742 had been proposed but before it was adopted
does not render a sentence substantively unreasonable. United
States v. Ruiz-Apolonio, No. 10-50306, ___ F.3d ___, 2011
WL 4060803 at *8-9 (9th Cir. Sept 14, 2011). Urena’s sen-
tence, adopted before Amendment 742 was even proposed, is
not substantively unreasonable.
The district court is required to apply the guidelines in
effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii).
Subsequent amendments to the guidelines can only be consid-
ered if the amendment is clarifying existing law (a non-
substantive change) or listed as retroactive under U.S. Guide-
lines Manual § 1B1.10(c). United States v. Morgan, 376 F.3d
1002, 1010-11 (9th Cir. 2004). Amendment 742 is a substan-
tive change because it was not characterized as a clarification
and does not address a circuit conflict. Id. It was not listed as
a retroactive change, and does not have retroactive effect.
Urena argues in the alternative that we should give the dis-
trict court a chance to re-evaluate the sentence imposed in
light of the amendment. He cites United States v. Godin,
where the First Circuit vacated a defendant’s sentence and
remanded for re-sentencing after a non-retroactive amend-
ment changed the way that past convictions are counted for
criminal history purposes. 522 F.3d 133, 136 (1st Cir. 2008)
(per curiam). Recognizing that this amendment did not alter
the guideline range, the First Circuit in Godin reasoned that
it nonetheless might alter the district court’s ultimate choice
of sentence, and left it to the district court’s discretion
whether the sentence should be changed in light of the amend-
ment. Id.
We decline to adopt the approach taken by Godin. See also
United States v. Alexander, 553 F.3d 591,593 (7th Cir. 2009)
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(criticizing the First Circuit’s approach in Godin and declin-
ing to follow it). Amendment 742 is not listed as retroactive,
and the guidelines themselves make clear that such a substan-
tive change in the guidelines, where not listed as retroactive,
does not warrant resentencing. U.S. Guidelines Manual
§ 1B1.10(a)(2). Here, there was an otherwise reasonable sen-
tence arrived at in a procedurally correct way based on a
properly calculated guidelines range.
AFFIRMED.
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