United States v. Jonathan Jarnig

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 2021
• Docket: 20-30002
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 22 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30002

Plaintiff-Appellee, D.C. No. 3:18-cr-00047-SLG-1 v.

JONATHAN NEAL JARNIG, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Argued and Submitted June 16, 2021 Anchorage, Alaska

Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.

Jonathan Jarnig appeals his convictions after a bench trial for one count of

possessing a firearm in furtherance of a drug-trafficking offense in violation of 18

U.S.C. § 924(c), and two counts of being a felon in possession of a firearm in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. violation of 18 U.S.C. § 922(g). We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm Jarnig’s convictions.1

1. The evidence was sufficient to convict Jarnig of violating § 924(c). When

the sufficiency of the evidence underlying a conviction is challenged, the question

is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Section 924(c)(1)(A) provides that a defendant is guilty where “in furtherance of [a

drug-trafficking offense],” he “possesses a firearm.” The facts in evidence must

“reveal a nexus between the guns discovered and the underlying offense.” United

States v. Krouse, 370 F.3d 965, 968 (9th Cir. 2004).

A rational trier of fact could conclude there was a nexus between the firearm

discovered in Jarnig’s nightstand and the crime of maintaining a drug property.

See 21 U.S.C. § 856(a)(1).2 A confidential informant testified to buying drugs

from Jarnig at the same property, and stated that there had been drugs in the same

nightstand. See Krouse, 370 F.3d at 968 (holding that nexus existed where guns

1 The parties are familiar with the facts, so we discuss them only as necessary to resolve the issues on appeal. 2 Jarnig does not challenge that he maintained his house as a drug-involved premises in violation of § 856(a)(1). 2 were found “strategically located within easy reach in a room containing a

substantial quantity of drugs and drug trafficking paraphernalia” (citation and

footnote reference omitted) (emphasis added)).

2. We review Jarnig’s challenge to his § 922(g) convictions, brought

pursuant to Rehaif v. United States, 139 S. Ct. 2191 (2019), for plain error. See

Greer v. United States, 141 S. Ct. 2090, 2096 (2021).3 Rehaif was decided after

Jarnig was convicted, but he gets the benefit of Rehaif on direct appeal. See id.

Plain error is: (1) an error; that (2) is plain; (3) affects substantial rights; and (4)

seriously affects “the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Johnson, 979 F.3d 632, 636 (9th Cir. 2020), as

amended (citation omitted).

Section 922(g) provides that “[i]t shall be unlawful” for certain individuals

to possess firearms and lists nine categories of individuals subject to the

prohibition. One category is “any person . . . who has been convicted in any court

of[] a crime punishable by imprisonment for a term exceeding one year.” 18

U.S.C. § 922(g)(1). A separate statute provides that any person who “knowingly

violates” § 922(g) shall be fined or imprisoned. 18 U.S.C. § 924(a)(2).

3 In light of Greer, Jarnig conceded that the asserted Rehaif error was not structural. 3 The term “crime punishable by imprisonment for a term exceeding one year”

as used in § 922(g) does not include “[a]ny conviction which has been expunged,

or set aside or for which a person has been pardoned or has had civil rights

restored.” 18 U.S.C. § 921(a)(20). To determine whether a person’s civil rights

have been restored, we look to applicable state laws on the possession of firearms.

See United States v. Herron, 45 F.3d 340, 342 (9th Cir. 1995). Alaska restores the

right to possess firearms automatically ten years after “unconditional discharge on

the prior offense.” Alaska Stat. § 11.61.200(b).

The government argues that § 921(a)(20)’s exclusion of convictions for

which a person has had civil rights restored from the category of crimes

“punishable by imprisonment for a term exceeding one year” is an affirmative

defense for which Jarnig bore the burden of proof, not an exception the

government was required to disprove in order to establish a § 922(g) violation. Cf.

United States v. Benamor, 937 F.3d 1182, 1186–88 (9th Cir. 2019), as amended

(explaining that the antique firearm exception to § 922(g) is an affirmative

defense). But even if the burden were the government’s, Jarnig failed to object at

trial and thus plain error review applies. See Johnson v. United States, 520 U.S.

461, 465–66 (1997). Jarnig has not carried his burden on plain error review to

establish that any failure by the government to prove that he knew his rights had

4 not been restored affected his substantial rights. See Greer, 141 S. Ct. at 2096-97.

On August 11, 2009, Jarnig admitted at a final parole hearing that he had violated

his parole in December, 2006 and April, 2009. Thus, Jarnig acknowledged he had

not received an “unconditional discharge” from his felony sentence as of those

dates. Jarnig’s judicial admissions establish that he knew his rights had not been

restored at least as of the time officers found guns in his possession—less than ten

years later—on April 5, 2017, and January 11, 2018.

AFFIRMED.