United States v. Deandre Cotton ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10171
Plaintiff-Appellee, D.C. No.
2:15-cr-00094-LDG-VCF-1
v.
DEANDRE SPENCER COTTON, MEMORANDUM*
Defendant-Appellant.
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Withdrawn from Submission October 18, 2018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.
Partial Concurrence and Partial Dissent by Judge D.W. NELSON
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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
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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”); United States v. Figueroa-Beltran, 995 F.3d 724 (9th Cir. 2021). The
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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.
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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. 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.
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FILED
17-10171, U.S. v. Cotton
JUL 28 2021
D.W. NELSON, Circuit Judge, concurring-in-part, dissenting-in-part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the majority that the government waived any challenges to NRS
§ 453.316. I add that NRS § 453.316 appears to be categorically overbroad with
regard to its actus reus requirement because the statute criminalizes “using” a
controlled substance, and U.S.S.G. § 4B1.2 does not. See Villavicencio v. Sessions,
904 F.3d 658, 666–67 (9th Cir. 2018). I also agree with the majority that the
Nevada Supreme Court’s decision in Figueroa-Beltran v. United States, 467 P.3d
615 (Nev. 2020) holding that NRS § 453.337 is divisible leads us to the conclusion
that NRS § 453.337 qualifies as a predicate offense in this case. Although the
statute is overbroad, under the modified categorical approach, Cotton was
convicted of possessing cocaine for the purpose of sale, which is a federal drug
trafficking offense. However, because I do not believe that NRS § 200.481, battery
causing substantial bodily harm, qualifies as a crime of violence under either the
elements clause or the enumerated offenses clause of U.S.S.G. § 4B1.2, I
respectfully dissent.
First, a violation of NRS § 200.481 does not necessarily involve the level of
force required by Johnson v. United States, 559 U.S. 133, 140 (2010). Nevada’s
definition of “substantial bodily harm” includes “prolonged physical pain.” NRS
§ 0.060(2); Collins v. State, 203 P.3d 90, 92 (Nev. 2009). The Nevada Supreme
Court defines “prolonged physical pain” as “some physical suffering or injury that
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17-10171, U.S. v. Cotton
lasts longer than the pain immediately resulting from the wrongful act.” Id. at 92–
93. For example, “touching the skin of a person who has suffered third degree
burns will cause exquisite pain, while the forceful striking of a gymnast in the solar
plexus may cause him no discomfort at all.” Id. at 92 (citing Matter of Philip A.,
400 N.E.2d 358-59 (Ct. App. 1980)). As “prolonged physical pain” may be caused
by only a simple touch (for example, if the victim has third-degree burns), a
conviction for battery causing substantial bodily harm can be sustained through
“the merest touching.” See Johnson, 559 U.S. at 139. Nevada battery causing
substantial bodily harm may therefore be effectuated by using a level of force that
is insufficient under Johnson.
Second, NRS § 200.481 does not fall within the generic definition of
aggravated assault under the enumerated offenses clause. The mens rea
requirement of willfulness in battery causing substantial bodily harm applies
specifically to the intent to use force, and not the intent to cause substantial bodily
harm. See Hobbs v. State, 251 P.3d 177, 179–80 (Nev. 2011); Robey v. State, 611
P.2d 209, 210 (Nev. 1980). The statute therefore is not a categorical match for
aggravated assault under our circuit’s definition. See United States v. Gomez-
Hernandez, 680 F.3d 1171, 1177 (9th Cir. 2012).
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17-10171, U.S. v. Cotton
Because Cotton does not have the requisite number of predicate offenses for
a U.S.S.G. § 2K2.1(a)(2) enhancement, I would affirm his convictions, vacate the
sentence, and remand for resentencing.
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