United States v. Deandre Cotton

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 28, 2020
• Docket: 17-10171
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 28 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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Argued and Submitted October 9, 2018 Withdrawn from Submission October 18, 2018 Resubmitted September 28, 2020 San Francisco, California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.

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

2 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)

3 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.

4 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.