NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 4 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-30130

                Plaintiff-Appellee,             D.C. No.
                                                1:17-cr-02015-EFS-1
 v.

JOHNNY ANDRES ASUNCION III,                     MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Edward F. Shea, District Judge, Presiding

                        Argued and Submitted May 7, 2020
                               Seattle, Washington

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and CHHABRIA,**
District Judge.

      Johnny Andres Asuncion appeals from a jury verdict convicting him on one

count of possession with intent to distribute 50 grams or more of

methamphetamine in violation of 21 U.S.C. § 841(a) and (b)(1)(A)(viii). We



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
affirm. We reject two of his arguments in a concurrently filed published opinion,

and we reject the remaining arguments here.

      1. The district court did not abuse its discretion by admitting evidence of

Asuncion’s 2007 conviction for distribution of methamphetamine under Federal

Rule of Evidence 404(b). Asuncion’s earlier conviction served as evidence that he

knew the substance in his possession was methamphetamine, and that the quantity

in his possession was far greater than necessary for personal use. And although the

conviction was ten years old when it was admitted, a lapse of a decade or more

does not make 404(b) evidence inadmissible when the prior wrong is so similar to

the crime charged. See United States v. Johnson, 

, 1283 (9th Cir.

1997).

      Nor did the district court abuse its discretion by overruling Asuncion’s

objection to admission of the prior conviction pursuant to Rule 403. The district

judge adequately balanced the probative value of the prior conviction against the

risk of unfair prejudice, and at trial allowed only the fact of the conviction and the

drug amount to come in. See Boyd v. City and County of San Francisco, 

, 948 (9th Cir. 2009).

      2. The district court did not err in rejecting Asuncion’s argument that the

decision to seek recidivism enhancements amounted to vindictive prosecution. The

government informed Asuncion of its intention to seek the enhancements at the


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start of the case, and it offered to forgo them as a condition of a plea deal.

Asuncion did not plead guilty, and the government sought the sentencing

enhancements as promised. It has long been the rule that prosecutors may threaten

more severe charges or penalties during plea negotiations, “and later, if no guilty

plea is forthcoming, make good on that threat.” United States v. Gamez-Orduno,

, 462–63 (9th Cir. 2000); see also Bordenkircher v. Hayes, 

, 364 (1978).

      3. The district court did not err in failing to find the phrase “felony drug

offense” in section 841 unconstitutionally vague. Because Asuncion did not raise

this argument below, we review for plain error. United States v. Chi Mak, 

, 1133 (9th Cir. 2012). The statute defines a “felony drug offense” as “an

offense that is punishable by imprisonment for more than one year under any law

. . . that prohibits or restricts conduct relating to narcotic drugs, marihuana,

anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44).

Asuncion contends that the phrase “conduct relating to” in this definition makes it

unconstitutionally vague on its face. But Ninth Circuit precedent requires the

constitutionality of “felony drug offense” to be examined as applied to the

defendant. See United States v. Van Winrow, 

, 1072 (9th Cir. 1991);

United States v. Mincoff, 

, 1201 (9th Cir. 2009). And Asuncion

acknowledges that his prior convictions for possession of cocaine and


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methamphetamine “clearly fall within [the definition’s] grasp.”

      4. The district court correctly rejected Asuncion’s argument that the Sixth

Amendment requires his prior convictions to have been found by a jury. See

Apprendi v. New Jersey, 

, 490 (2000).

      5. Section 841’s recidivism provision prescribing a mandatory minimum

sentence of life imprisonment is not unconstitutional. In United States v. Jensen,

we held this very provision to be constitutional, rejecting arguments almost

identical to the ones Asuncion makes here. 

, 706–08 (9th Cir. 2005).

The provision does not violate the Eighth Amendment, even though it results in a

punishment that seems disproportionate to the crime. It does not violate the

defendant’s right to due process, even though it wrests discretion from the

sentencing court. And it does not violate separation-of-powers principles, even

though it effectively allows the executive branch discretion to decide the

punishment for a crime.

      AFFIRMED.




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