Flores

MEMORANDUM **

Steven Joseph Flores appeals his jury conviction and sentence for one count of facilitating the entry into the United States of an undocumented alien for financial gain and aiding and abetting in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii) and 18 U.S.C. § 2 , and two counts of inducing and encouraging aliens to enter the United States and aiding and abetting in violation of 8 U.S.C. § 1324 (a)(l)(A)(iv) and (v)(II) and 18 U.S.C. § 2 . We affirm in part and reverse and remand with respect to Flores’ conviction and sentence on count one.

I

The district court did not abuse its discretion in ordering Steven Flores’ trial to proceed before his wife Nichole’s. This court’s ruling in United States v. Tham, 960 F.2d 1391, 1396 (9th Cir.1991), suggests that it would be reversible error for a judge to grant severance for the purpose of facilitating exculpatory co-defendant testimony, only to deny the continuance necessary to put the severance to use. Tham’s rule applies, however, only when the district court’s decision to grant severance is based primarily on the need to facilitate exculpatory co-defendant testimony. Id. In this case, the district court based its severance…