United States v. Mario Osorio-Cola

MEMORANDUM

Defendant-Appellant Mario Osorio-Cola (“Osorio-Cola”) appeals his conviction and sentence for assault on a federal officer under 18 U.S.C. § 111 . Because the parties are familiar with the facts and proce dural history, we do not restate them except as necessary to explain our decision. We have jurisdiction under 28 U.S.C § 1291, and we affirm.

1. Where, as here, the defendant does not object at trial, we review for plain error the district court’s failure to exclude the prosecution’s reference to a defendant’s silence. United States v. Lopez-Martinez, 543 F.3d 509, 516 (9th Cir.2008). A defendant’s right to maintain his post-arrest, post-Miranda silence under Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), is triggered by “(1) a defendant’s invocation of his right to remain silent and (2) an omission in post- Miranda statements arguably inconsistent with his trial testimony.” United States v. Ramirez-Estrada, 749 F.3d 1129, 1134 (9th Cir.2014) (citation omitted). Even if Osorio-Cola did invoke his right to remain silent, and it is not clear on this record that he did, any resulting Doyle error did not amount to plain error. Osorio-Cola was able to…