NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOHNNY ANDRES ASUNCION III, 

Defendant-Appellant.

No. 18-30130 

D.C. No. 

1:17-cr-02015-EFS-1 

MEMORANDUM*

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.

FILED

SEP 4 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-30130 

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, 132 F.3d 1279, 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, 576 F.3d 

938, 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 
3 18-30130 

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, 

235 F.3d 453, 462–63 (9th Cir. 2000); see also Bordenkircher v. Hayes, 434 U.S. 

357, 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, 683 F.3d 

1126, 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, 951 F.2d 1069, 1072 (9th Cir. 1991); 

United States v. Mincoff, 574 F.3d 1186, 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, 530 U.S. 466, 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. 425 F.3d 698, 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. Id. at 707–08.

AFFIRMED.