United States of America v. Luis Alvarez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LUIS ALVAREZ,
Defendant - Appellant.
No. 12-50326
D.C. No. 3:08-cr-2018-L-3
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Submitted August 27, 2013**
Pasadena, California
Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.***
Luiz Alvarez appeals his convictions and sentence for conspiracy to
distribute 50 grams or more of methamphetamine (21 U.S.C. §§ 841(a) & 846),
FILED
SEP 13 2013
MOLLY C. DWYER, CL
U.S. COURT OF APPEA
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.

-- 1 of 2 --

and possession with intent to distribute 90 grams of methamphetamine and aiding
and abetting (21 U.S.C. § 841(a)(1) & 18 U.S.C. § 2).
It was not plain error for the district court to refer to an expert witness as an
“expert” in the presence of the jury. There is no clear or obvious rule in this
Circuit that prohibits such a practice and even if the reference was an error, it did
not affect the outcome of the trial because the jury received overwhelming
evidence of defendant’s guilt. Since the requirements for plain error have not been
met, the panel need not determine whether the error “seriously affect[ed] the
fairness, integrity or public reputation” of defendant’s trial. See Puckett v. United
States, 556 U.S. 129, 135, 129 S. Ct. 1423, 173 L.Ed.2d. 266 (2009).
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140
L.Ed.2d 350 (1998), which authorized, for sentencing purposes, judicial fact
finding as to the existence of a prior conviction, remains binding authority.
Defendant has failed to offer a viable argument for avoiding its holding.
AFFIRMED.
2

-- 2 of 2 --