United States v. Charles Bell, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2018
• Docket: 16-10416
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10416

Plaintiff-Appellee, D.C. No. 2:14-cr-00138-JAD-VCF-1 v.

CHARLES RAY BELL, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted March 16, 2018 Withdrawn March 30, 2018 Resubmitted June 25, 2018 San Francisco, California

Before: McKEOWN, FUENTES,** and BEA, Circuit Judges.

Charles Bell, Jr. (“Bell”) appeals his conviction and sentence after a two-day

jury trial for one count of being a felon-in-possession of a firearm in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2). Because the parties are familiar with the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Julio M. Fuentes, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291.

We affirm the conviction, but remand for resentencing in light of our decision in

United States v. Edling, No. 16-10457, 2018 WL 2752208 (9th Cir. June 8, 2018).

Regarding Bell’s vouching claims, the government’s comments at trial,

although troubling, were not so prejudicial as to materially affect the jury verdict.

See United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013); United States v.

McChristian, 47 F.3d 1499, 1507–08 (9th Cir. 1995); United States v. Necoechea,

986 F.2d 1273, 1278 (9th Cir. 1993). At trial, Bell objected to only some of the

statements he challenges here, but even under the more lenient standard of review

for statements challenged at trial, any error was harmless. United States v.

Alcantara-Castillo, 788 F.3d 1186, 1190 (9th Cir. 2015) (“Where the defendant

has objected to alleged prosecutorial misconduct at trial, we review for harmless

error[,] . . . [w]here the defendant has not objected . . . we review for plain error.”).

Further, considering the substantial evidence adduced during the two-day

jury trial, the statements that Bell challenges, though ill-advised, did not “seriously

affect[] the fairness, integrity, or public reputation of [the] proceedings,” and were

not so prejudicial as to warrant reversal of Bell’s conviction. See United States v.

Combs, 379 F.3d 564, 568 (9th Cir. 2004) (internal quotation marks omitted).

2 We review de novo whether a defendant’s prior conviction constitutes a

“crime of violence.” United States v. Rocha-Alvarado, 843 F.3d 802, 805–06 (9th

Cir. 2016).

We vacate Bell’s sentence and remand for resentencing in light of our

recent decision in United States v. Edling, which held that robbery under Nevada

Revised Statutes § 200.380 is not a “crime of violence” as that phrase is defined in

the United States Sentencing Guidelines. See United States v. Edling, No. 16-

10457, 2018 WL 2752208, at *3 (9th Cir. June 8, 2018); see also U.S.S.G. §§

2K2.1(a), 4B1.2(a); N.R.S. § 200.380.

AFFIRMED in part, VACATED in part, and REMANDED.