
    UNITED STATES of America, Plaintiff—Appellee, v. Marinella AMAYA, Defendant—Appellant.
    No. 03-50057.
    D.C. No. CR-02-00812-R.
    United States Court of Appeals, Ninth Circuit.
    Submitted July 14, 2004.
    
    Decided July 19, 2004.
    Ronald L. Cheng, Esq., Wesley L. Hsu, Brian M. Hoffstadt, Esq., Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
    Richard D. Rome, Law Offices of Richard D. Rome, Van Nuys, CA, Defendant Appellant.
    Before FARRIS, KOZINSKI and SILVERMAN, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

1. The district court erred by admitting the statements of Amaya’s co-conspirator. See Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). However, the error was harmless beyond a reasonable doubt. See United States v. Nielsen, 371 F.3d 574, 581-82 (9th Cir.2004).

2. The court did not abuse its discretion by excluding from evidence Amaya’s allegations of sexual harassment. See United States v. Shryock, 342 F.3d 948, 981 (9th Cir.2003).

3. The prosecutor did not commit misconduct. See United States v. Patel, 762 F.2d 784, 795 (9th Cir.1985).

4. There was sufficient evidence to support the jury’s verdict that Amaya caused at least $5000 in damage. See United States v. Middleton, 231 F.3d 1207, 1209, 1214 (9th Cir.2000). The district court did not plainly err in assessing an upward sentencing adjustment for a loss exceeding $10,000.

5. Amaya’s counsel was not ineffective. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

6. The district court acted within its permissible discretion in finding that Ama-ya failed to meet the requirements for an acceptance of responsibility sentencing reduction. See United States v. Bazuaye, 240 F.3d 861, 866 (9th Cir.2001).

7. The district court recognized that it had discretion to grant Amaya a downward sentencing departure, but it refused to do so. This discretionary refusal is unappealable. See United States v. Romero, 293 F.3d 1120, 1126 (9th Cir.2002).

AFFIRMED. 
      
       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.
     