United States v. Arsenio Huqueriza

MEMORANDUM

Arsenio Huqueriza appeals the 63-month sentence that the district court imposed following his guilty plea to one count of possession of child pornography, in violation of 18 U.S.C. § 2252 (a)(4)(B). Huqueriza claims that the prosecutor committed misconduct by engaging in an improper ex parte communication. He also alleges that his due process rights were violated when the judge viewed the images without granting him a hearing. Huqueri-za further asserts that counsel’s performance was deficient for failing to raise these issues at his sentencing hearing. We affirm.

I.

Because the issue of prosecutorial misconduct is raised for the first time on appeal, it is reviewed for plain error. See United States v. Tarazon, 989 F.2d 1045, 1051 (9th Cir.1993). Huqueriza argues that the prosecutor engaged in an improper ex parte communication by encouraging the district judge to view the images before imposing sentence. The record establishes that defense counsel was listed on the “cc” line of the letter to the judge. The letter was dated October 27, 2008, and received by counsel no later than October 30. There was, at most, a slight delay in the transmission of the letter to…