Opinion
No. 17-10171
09-28-2020
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEANDRE SPENCER COTTON, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 2:15-cr-00094-LDG-VCF-1 MEMORANDUM Appeal from the United States District Court for the District of Nevada
Lloyd D. George, District Judge, Presiding Argued and Submitted October 9, 2018
Withdrawn from Submission October 18, 2018
Resubmitted September 28, 2020 San Francisco, California Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Deandre Cotton appeals the denial of a continuance and a motion to suppress, as well as his convictions and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and possession to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm Cotton's convictions and sentence.
1. The district court did not abuse its discretion in denying Cotton's motion to continue the suppression hearing to secure additional witnesses. An additional continuance would have resulted in inconvenience to the government and the court. Cotton also cannot establish prejudice because defense counsel indicated that he was ready to proceed at the beginning of the hearing, when none of his witnesses were present. Cf. United States v. Flynt, 756 F.2d 1352, 1358-61 (9th Cir. 1985) (finding the denial of a continuance prejudicial because the district court had "repeatedly thwarted" defense counsel's efforts).
2. Under de novo review, the district court did not err in denying Cotton's motion to suppress. See United States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016). The smell of marijuana emanating from the car provided probable cause to conduct a warrantless search. See, e.g., United States v. Guzman-Padilla, 573 F.3d 865, 886 n.5 (9th Cir. 2009).
3. At trial, the jury did not plainly err in finding that Cotton, the driver and likely owner of the car and backpack, constructively possessed the marijuana as well as the firearm. The district court properly allowed testimony from Officer Ruzicka, Officer Guillen, and Agent Nestor regarding the packaging of marijuana, as the testimony did not opine on Cotton's mental state. Officers Ruzicka and Guillen gave proper lay opinion testimony that the packaging of the marijuana was consistent with distribution and sales. The jury did not plainly err in finding that, based on the packaging of the marijuana, Cotton had the intent to distribute. Any possible error in allowing the prosecutor's comments in the opening statement and closing argument was harmless. For the reasons discussed above, we do not find any cumulative error at trial.
4. On appeal, Cotton challenges whether each of his three prior convictions qualifies as a crime of violence or a controlled substance offense under United States Sentencing Guidelines ("U.S.S.G.") § 4B1.2. The government waived any challenges to Nevada Revised Statutes ("NRS") § 453.316 due to failure to brief the issue fully. See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015) (en banc).
Under de novo review, we nonetheless conclude that both remaining offenses—NRS § 200.481 and NRS § 453.337—qualify as predicate U.S.S.G. § 4B1.2 offenses. See LaChance v. State, 321 P.3d 919, 925 (Nev. 2014) (explaining that NRS § 200.481's "prolonged physical pain" element "must necessarily encompass some physical suffering or injury that lasts longer than the pain immediately resulting from the wrongful act" (citations omitted)); Figueroa-Beltran v. United States, 467 P.3d 615, 624 (Nev. 2020) (holding that "the identity of a substance is an element that must be proven to sustain a conviction under NRS 453.337"). The remaining convictions thus support a U.S.S.G. § 2K2.1(a)(2) enhancement.
5. After the hearing, we granted Cotton's unopposed motion for supplemental briefing to address the impact of Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the Supreme Court held that a person prosecuted under 18 U.S.C. § 922(g) must know, at the time of the alleged firearm possession, of his status as a person barred from possessing a firearm. Id. at 2194. In Cotton's case, a jury would have to find beyond a reasonable doubt that he knew, at the time of his arrest, that he had been convicted of "a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1).
We review Cotton's challenge to the indictment, the sufficiency of the evidence, and the jury instructions for plain error. United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019); United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015); United States v. Velasco-Medina, 305 F.3d 839, 847 (9th Cir. 2002). Reviewing for plain error, we find there was (1) "error" that was (2) "plain." See Benamor, 937 F.3d at 1188. The question is whether that error (3) affected Cotton's substantial rights, which means he must "show a reasonable probability that, but for the error," the outcome would have been different, and (4) "seriously affects the fairness, integrity or public reputation of judicial proceedings." Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks and citations omitted). We conclude these prongs are not met.
When Cotton was arrested, he had six prior felony convictions. For three of them, Cotton was actually sentenced to at least one year of imprisonment, and certified copies of the convictions were admitted into evidence at trial without objection. For two of the remaining convictions, which are reflected in the Presentence Report, Cotton was actually sentenced to at least one year of imprisonment. Even assuming the prior convictions were insufficient to establish Cotton's knowledge of his status as a felon, trial testimony from Cotton's cousin, Joshua Norgaad, provides further support. Norgaad testified that he knew Cotton for many years and that he was aware of Cotton's history of incarceration, felony status, and inability to lawfully have a gun. Taken together, Cotton has not shown that the error affected his substantial rights or the fairness, integrity, or public reputation of the trial.
AFFIRMED.