Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding D.C. No.5:07-cr-00148-VAP-1
The opinion of the court was delivered by: Gould, Circuit Judge:
Argued and Submitted September 2, 2011-Pasadena, California
Before: Mary M. Schroeder and Ronald M. Gould, Circuit Judges, and Michael Patrick McCuskey, Chief District Judge.*fn1
Lenny Urena appeals his jury conviction for assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) and possession of contraband in prison (a prison knife or "shank") in violation of 18 U.S.C. §§ 1791(a)(2), (b)(3). First, Urena argues that the district court abused its discretion by refusing to instruct the jury on his theory that he acted in self-defense. Second, Urena claims that the district court violated his Confrontation Clause rights by refusing to allow him to cross-examine the treating physician about the cause of the victim's injuries, and that the district court erred by refusing to let him designate the treating physician as his expert witness on causation during the trial. Finally, Urena further claims that his sentence is substantively unreasonable because his guidelines range sentence included "recency points," which were removed from the guidelines after he was sentenced. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
On the morning of April 11th, 2006, federal prisoner Gary Dennis grabbed fellow inmate Lenny Urena and called him a "bitch." Urena returned the insult and the two separated. Hours later, Urena attacked Dennis by surprise, striking him in the face. Dennis tried to disengage but Urena pursued and struck him repeatedly from behind. Dennis eventually grabbed Urena and wrestled him to the ground. Another inmate, Nekis Atwater, intervened, kicking Dennis in the back of the head and punching him at least fourteen times.
Dennis's injuries were superficial, but he suffered lacerations that required stitches. The shank that caused these injuries was recovered from underneath Urena's shoulder. Eyewitnesses disagree about who had the shank in the fight, Atwater or Urena. Urena confessed that the shank was his and that he had held it during the fight.
At trial, Urena argued that Atwater attacked Dennis with the shank, and that he confessed to possessing it because he did not want to "snitch" on Atwater. He also argued self-defense, claiming he was in danger because Dennis had called him a bitch, which he contends is a serious threat in prison. Alternatively, he argued that Dennis could have had a weapon when Urena attacked him. The district court at first let Urena argue self-defense in his opening statement, but later refused to instruct the jury on self-defense, reasoning that Urena had not established a sufficient factual foundation.
At trial, the Government called Dr. Jaime David-Dennis's treating physician-to testify on the nature and extent of Dennis's injuries. Dr. David's report said that the injury above Dennis's right eye was likely caused by a punch or a fall to the ground, not a knife. The Government moved to preclude Urena from asking Dr. David questions about causation, and the court agreed to do so as long as the Government did not open the door to that line of questioning on direct. The district court explained that "[t]here is a difference between the nature of a wound and causation," and noted that questions about causation were outside ...