United States v. William Jearell Bircher

35 F.3d 572 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. William Jearell BIRCHER, Defendant-Appellant. No. 93-10536. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 1994. Decided Sept. 8, 1994. 1 Before: LEAVY and KLEINFELD, Circuit Judges, and VAN SICKLE, * District Judge. 2 MEMORANDUM ** 3 Defendant William Bircher appeals his conviction for distribution of cocaine and possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841 . He contends that the trial court (1) should have granted his motions for a mistrial, based on assertedly improper comments by the prosecutor and by a witness for the prosecution, and (2) improperly refused his proffered "mere presence" instruction. 4 Bircher also appeals the sentence imposed on him under the Sentencing Guidelines. In this vein, he argues that the trial court (1) should not have granted the government's request for an upward…