United States v. Augustine Thomas

MEMORANDUM

Augustine Bernal Thomas appeals his conviction and sentence for obstruction of justice by retaliating against a witness and conspiracy to obstruct justice in violation of 18 U.S.C. § 1513 (b). Thomas ordered two Native American inmates at the Central Arizona Detention Center to beat up Jeremy Zepeda because Zepeda testified against his (Zepeda’s) brother in a trial unrelated to Thomas. He complains that the district court should have excluded certain expert testimony of prosecution witness Peter Gammill. He also contends that his 860-month sentence, which was at the low end of a 360-month-to-life Guideline range, was substantively unreasonable. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm Thomas’s conviction and sentence.

Thomas argues that the district court erred in three ways in failing to exclude Gammill’s testimony. First, he argues that the court failed to conduct a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), to determine whether the expert portion of the testimony was admissible. However, Thomas failed to request such a hearing or challenge Gammill’s…