872 F2d 431 United States v. Hernandez
872 F.2d 431
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee
v.
Oscar HERNANDEZ, Defendant-Appellant.
No. 88-5119.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 9, 1989*.
Decided March 29, 1989.
Before TANG, NELSON, and REINHARDT, Circuit Judges.
MEMORANDUM**
Oscar Hernandez appeals from his conviction and sentence, following a jury trial, for importation of marijuana, in violation of 21 U.S.C. Secs. 952 and 960 (1976 & Supp.1981), and possession of marijuana with intent to distribute, in violation of 21 U.S.C.A. Sec. 841(a)(1) (1976 & Supp.1981). He contends that the district court violated his fifth amendment right to remain silent and not to incriminate himself by erroneously conditioning the admission of a border patrol agent's exculpatory hearsay statement on Hernandez' testifying. He further contends that the district court abused its discretion by enhancing his sentence based on its assessment that Hernandez gave false testimony.
The district court did not condition the admissibility of the agent's testimony on Hernandez' testifying. As background to his ruling, the judge stated his understanding that the defendant planned to testify. He then expressly stated that the agent's testimony was not admissible to corroborate Hernandez' testimony, but was admissible solely as evidence of Hernandez' state of mind, pursuant to Fed.R.Evid. 803(3). There is no indication in the record that Hernandez' testimony was a prerequisite to admission of the agent's testimony. To the contrary, it is clear, that the agent's testimony was admissible on a basis that was in no way related to the question whether Hernandez would testify.
Moreover, this court will not review a challenge to a district court's evidentiary ruling made for the first time on appeal unless the challenge involves plain error and the error affected substantial rights. Fed.R.Evid. 103; Fed.R.Crim.P. 52. Even if an error affected substantial rights, this court will not reverse if the error was harmless beyond a reasonable doubt. United States v. Wilson, 690 F.2d 1267, 1274 (9th Cir.1982), cert. denied, 464 U.S. 867 (1983). Here, there was no plain error that affected substantial rights and accordingly, Hernandez' failure to make a timely, specific objection precludes him from objecting now. See Fed.R.Evid. 103; United States v. McQuisten, 795 F.2d 858, 865 (9th Cir.1988). Even if the district court did commit plain error it was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967); Wilson, 690 F.2d at 1274. There was overwhelming evidence of Hernandez' guilt. Accordingly, any error in admitting the agent's exculpatory hearsay statement could not have affected the outcome of Hernandez' case. See Wilson, 690 F.2d at 1274-1275.
Hernandez' claim that the district court abused its discretion in increasing his sentence by one year based on its perception that Hernandez lied on the stand lacks merit. We review a sentence within statutory limits only for an abuse of discretion. United States v. Benny, 786 F.2d 1272, 1278 (9th Cir.1985); United States v. Martinez-Navarro, 604 F.2d 1184, 1186 (9th Cir.1979), cert. denied 444 U.S. 1084 (1980). The district court found that Hernandez had lied on the witness stand and the increase of one year in Hernandez' sentence is clearly within statutory limits. See 21 U.S.C. Secs. 960(b)(2)(6), 841(b)(1)(B) (1976 & Supp.1981). Accordingly, the district court did not abuse its discretion in considering Hernandez' false testimony as a factor in sentencing. See Martinez-Navarro, 604 F.2d at 1186.
AFFIRMED.