United States v. Ortega
Opinion of the Court
MEMORANDUM
Oscar Antonio Ortega appeals from his conviction and sentence for possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). We affirm the conviction, but remand the sentencing issues pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005).
I
We review a trial court’s denial of a continuance request for an abuse of discretion. United States v. Prime, 363 F.3d 1028, 1035 (9th Cir. 2004). We consider several factors in determining whether a district court abused its discretion in failing to grant a continuance, including the requester’s diligence in case preparation, the likely utility of the continuance, the inconvenience a continuance may have caused, and whether other continuances have been granted. United States v. Fowlie, 24 F.3d 1059, 1069 (9th Cir. 1994); United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). We will reverse only if the appellant shows that the denial prejudiced his defense. United States v. Gonzalez-Rincon, 36 F.3d 859, 865 (9th Cir. 1994).
After careful review of the record, the briefs, and arguments of the parties, we conclude that the district court properly weighed the relevant factors in reaching its decision. Given the entire context of the case, the district court did not commit reversible error in its actions.
II
Because Ortega did not admit the elements of the crime, the district court did not err in denying Ortega a downward adjustment for acceptance of responsibility as defined in the United States Sentencing Guidelines (“USSG”). See USSG § 3E1.1.
III
The district court did not commit plain error in imposing special conditions of supervised release. Plain error requires: 1) an error; 2) that is plain; and 3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).
The district court did not commit plain error in the imposition of a supervised release condition requiring Ortega to report to his probation officer within 72 hours of reentry to the United States after leaving the country. Oretega did not object to this condition when sentenced, but now contends that the condition violates his rights under the Fifth Amendment. However, the Fifth Amendment does not protect non-testimonial acts, such as the production of real or physical evidence. Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The act of reporting to one’s probation officer is not a testimonial act. Id. at 764, 86 S.Ct. 1826.
IV
Under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Sentencing Guidelines have become advisory, rather than mandatory. In this case, the district court declined Oretega’s request for a downward departure and his request for a downward adjustment for acceptance of responsibility under a mandatory sentencing scheme. Therefore, we remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) to permit the district court to determine whether the sentence would have been the same under Booker. In remanding, we do not preclude the district court or the parties from reconsidering the special conditions of supervised release.
CONVICTION AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff—Appellee v. Oscar Antonio ORTEGA, Defendant—Appellant
- Cited By
- 2 cases
- Status
- Published