UNITED STATES of America, Plaintiff-Appellee, v. Manuel Arturo NORIEGA, Defendant-Appellant, 136 F. App'x 983

MEMORANDUM Manuel Arturo Noriega appeals the district court’s judgment, convicting him of one count of conspiring to transport illegal aliens and two counts of transporting illegal aliens, and sentencing him to 21 months in prison. Noriega contends that the district court erred by denying him a new trial based on the prosecution’s inadvertent failure to disclose a witness’s prior juvenile conviction.

Noriega asserts that the government’s failure to disclose the prior conviction was a Brady violation, that the conviction was newly-discovered evidence necessitating a new trial, and that a Confrontation Clause violation occurred because defense counsel was unable to cross-examine the witness about the prior conviction. We disagree. Although the prior conviction was relevant to the witness’s credibility, its earlier discovery would not have changed the outcome of Noriega’s trial. See Bern v.

Lambert, 283 F.3d 1040, 1052-53 (9th Cir.2002) (explaining that to warrant relief under Brady, undisclosed evidence must undermine confidence in the outcome of the trial); see also United States v. Sarno, 73 F.3d 1470, 1507 (9th Cir.1995) (noting that newly-discovered evidence must “indieate[] that a new trial would probably result in acquittal.”) (citation omitted). Moreover, the witness was thoroughly cross-examined at trial, despite his prior juvenile conviction being unknown. See United States v.

Williams, 291 F.3d 1180, 1191 (9th Cir.2002) (observing that the right to cross-examination “is satisfied when ... the defendant had a full and fair opportunity to probe any inconsistencies in the witness’ statements.”) (citation omitted). We affirm the district court’s denial of Noriega’s motion for a new trial. Because the district court enhanced Noriega’s sentence based on facts not found by the jury, we remand to the district court for further proceedings in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir.2005). CONVICTION AFFIRMED. SENTENCE REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.