NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50127
Plaintiff-Appellee, D.C. No. 5:16-cr-00129-RGK-1 v.
JOSHUA PEREZ, AKA Lil Boy, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-50143
Plaintiff-Appellee, D.C. No. 5:16-cr-00129-RGK-3 v.
LUIS MANUEL DE LA ROSA, AKA Funny,
UNITED STATES OF AMERICA, No. 18-50150
Plaintiff-Appellee, D.C. No. 5:16-cr-00129-RGK-2 v.
ANDY REAL, AKA Pretty Boy, AKA Lil
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Andy,
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding
Argued and Submitted September 9, 2019 Pasadena, California
Before: OWENS, R. NELSON, and MILLER, Circuit Judges.
Joshua Perez, Luis Manuel De La Rosa, and Andy Real (collectively,
“Appellants”) appeal from their convictions and sentences for assaulting a federal
officer resulting in bodily injury in violation of 18 U.S.C. § 111. As the parties are
familiar with the facts, we do not recount them here. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part and vacate and remand in part.
1. Perez challenges his conviction on two grounds. Because neither
objection was raised below, we review for plain error, see United States v.
Springer, 51 F.3d 861, 864 n.1 (9th Cir. 1995); Fed. R. Crim. P. 30(d), and we
affirm his conviction.
First, Perez argues that the district court’s decision to limit the self-defense
jury instruction, so that it did not apply to Perez’s conduct outside the courtyard
gate, denied him a fair trial. Perez was entitled to an instruction on his theory of
the case “so long as the instruction he requested was ‘supported by law and ha[d]
2 some foundation in the evidence.’” United States v. Ornelas, 906 F.3d 1138, 1147
(9th Cir. 2018) (citation omitted). However, objectively viewing the evidence
presented of Perez’s conduct outside the courtyard gate, Perez did not have “a
reasonable belief that the use of force was necessary to defend himself . . . against
the immediate use of unlawful force” nor did he “use . . . no more force than was
reasonably necessary in the circumstances.” United States v. Acosta-Sierra, 690
F.3d 1111, 1126 (9th Cir. 2012) (citation omitted). Both trial testimony, including
Perez’s own testimony, and surveillance video make clear that Perez was the
attacker outside the gate. And, because “an individual who is the attacker cannot
make out a claim of self-defense as a justification for an assault,” id., the district
court’s limited self-defense jury instruction was not plain error.
Second, Perez contends that the district court’s remarks about and
instruction to the jury regarding the Bureau of Prisons instructional video on pat-
downs were excessive and improper. However, the district judge’s conduct did not
“project[] to the jury an appearance of advocacy or partiality.” United States v.
Scott, 642 F.3d 791, 799 (9th Cir. 2011) (per curiam) (citation omitted). Plus, the
judge “ha[d] broad discretion to comment upon the evidence.” Navellier v. Sletten,
262 F.3d 923, 942 (9th Cir. 2001). Moreover, to warrant reversal, the alleged
misconduct must have had a prejudicial effect on Perez – an analysis made “in
light of the evidence of guilt.” Scott, 642 F.3d at 799 (citation omitted). As there
3 was substantial evidence to convict, Perez was not prejudiced by this conduct.
2. Appellants contend that the district court miscalculated the
Sentencing Guidelines because it erred in finding that the officers suffered “serious
bodily injury.” U.S.S.G. § 1B1.1 cmt. n.1(L) (2016). First, Appellants argue that
the district court erred in only requiring proof by a preponderance of evidence,
rather than clear and convincing evidence, when making this “serious bodily
injury” finding. Appellants did not raise this objection below; therefore, plain-
error review applies. See United States v. Jordan, 256 F.3d 922, 926 (9th Cir.
2001). Because the totality of circumstances did not definitively require applying
the clear and convincing standard, see United States v. Barragan, 871 F.3d 689,
717 (9th Cir. 2017), and the district court could have made this finding under either
standard, the district court did not plainly err nor were Appellants’ rights
substantially affected.
Second, Appellants allege that, under any standard of proof, the district court
erred in finding that the officers’ injuries amounted to “serious bodily injury.”
Although the standard of review is unsettled, the district court’s finding survives
either clear-error or abuse-of-discretion review. The officers suffered extensive
injuries requiring numerous doctors’ appointments, CT scans and x-rays, pain
medications, and significant time off of work. This reasonably satisfied at least
one of the Guidelines’ means of defining “serious bodily injury.” U.S.S.G.
4 § 1B1.1 cmt. n.1(L) (2016) (requiring the injury to “involv[e] extreme physical
pain,” result in “the protracted impairment of a function of a bodily member,
organ, or mental faculty,” or “require[] medical intervention such as surgery,
hospitalization, or physical rehabilitation”); see also United States v. Corbin, 972
F.2d 271, 272 (9th Cir. 1992) (per curiam) (affirming a “serious bodily injury”
finding when the victim was hit “on the head with a metal object . . . causing a
laceration which required a two-layer closure using more than 25 sutures”).
3. Real argues that his 48-month sentence is unreasonable because the
district court failed to address or account for his “nonfrivolous mitigation
arguments.” We reject this argument. The district court correctly calculated the
Sentencing Guidelines, see United States v. Carty, 520 F.3d 984, 991 (9th Cir.
2008) (en banc), and addressed the 18 U.S.C. § 3553(a) factors, noting, for
instance, Real’s supportive family and his co-defendants’ sentences, see United
States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013) (requiring that the district
court set forth a “sufficient explanation” for appellate review). Nor is Real’s
sentence substantively unreasonable. Although there was testimony that Real
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50127
Plaintiff-Appellee, D.C. No. 5:16-cr-00129-RGK-1 v.
JOSHUA PEREZ, AKA Lil Boy, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-50143
Plaintiff-Appellee, D.C. No. 5:16-cr-00129-RGK-3 v.
LUIS MANUEL DE LA ROSA, AKA Funny,
UNITED STATES OF AMERICA, No. 18-50150
Plaintiff-Appellee, D.C. No. 5:16-cr-00129-RGK-2 v.
ANDY REAL, AKA Pretty Boy, AKA Lil
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Andy,
Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding
Argued and Submitted September 9, 2019 Pasadena, California
Before: OWENS, R. NELSON, and MILLER, Circuit Judges.
Joshua Perez, Luis Manuel De La Rosa, and Andy Real (collectively,
“Appellants”) appeal from their convictions and sentences for assaulting a federal
officer resulting in bodily injury in violation of 18 U.S.C. § 111. As the parties are
familiar with the facts, we do not recount them here. We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part and vacate and remand in part.
1. Perez challenges his conviction on two grounds. Because neither
objection was raised below, we review for plain error, see United States v.
Springer, 51 F.3d 861, 864 n.1 (9th Cir. 1995); Fed. R. Crim. P. 30(d), and we
affirm his conviction.
First, Perez argues that the district court’s decision to limit the self-defense
jury instruction, so that it did not apply to Perez’s conduct outside the courtyard
gate, denied him a fair trial. Perez was entitled to an instruction on his theory of
the case “so long as the instruction he requested was ‘supported by law and ha[d]
2 some foundation in the evidence.’” United States v. Ornelas, 906 F.3d 1138, 1147
(9th Cir. 2018) (citation omitted). However, objectively viewing the evidence
presented of Perez’s conduct outside the courtyard gate, Perez did not have “a
reasonable belief that the use of force was necessary to defend himself . . . against
the immediate use of unlawful force” nor did he “use . . . no more force than was
reasonably necessary in the circumstances.” United States v. Acosta-Sierra, 690
F.3d 1111, 1126 (9th Cir. 2012) (citation omitted). Both trial testimony, including
Perez’s own testimony, and surveillance video make clear that Perez was the
attacker outside the gate. And, because “an individual who is the attacker cannot
make out a claim of self-defense as a justification for an assault,” id., the district
court’s limited self-defense jury instruction was not plain error.
Second, Perez contends that the district court’s remarks about and
instruction to the jury regarding the Bureau of Prisons instructional video on pat-
downs were excessive and improper. However, the district judge’s conduct did not
“project[] to the jury an appearance of advocacy or partiality.” United States v.
Scott, 642 F.3d 791, 799 (9th Cir. 2011) (per curiam) (citation omitted). Plus, the
judge “ha[d] broad discretion to comment upon the evidence.” Navellier v. Sletten,
262 F.3d 923, 942 (9th Cir. 2001). Moreover, to warrant reversal, the alleged
misconduct must have had a prejudicial effect on Perez – an analysis made “in
light of the evidence of guilt.” Scott, 642 F.3d at 799 (citation omitted). As there
3 was substantial evidence to convict, Perez was not prejudiced by this conduct.
2. Appellants contend that the district court miscalculated the
Sentencing Guidelines because it erred in finding that the officers suffered “serious
bodily injury.” U.S.S.G. § 1B1.1 cmt. n.1(L) (2016). First, Appellants argue that
the district court erred in only requiring proof by a preponderance of evidence,
rather than clear and convincing evidence, when making this “serious bodily
injury” finding. Appellants did not raise this objection below; therefore, plain-
error review applies. See United States v. Jordan, 256 F.3d 922, 926 (9th Cir.
2001). Because the totality of circumstances did not definitively require applying
the clear and convincing standard, see United States v. Barragan, 871 F.3d 689,
717 (9th Cir. 2017), and the district court could have made this finding under either
standard, the district court did not plainly err nor were Appellants’ rights
substantially affected.
Second, Appellants allege that, under any standard of proof, the district court
erred in finding that the officers’ injuries amounted to “serious bodily injury.”
Although the standard of review is unsettled, the district court’s finding survives
either clear-error or abuse-of-discretion review. The officers suffered extensive
injuries requiring numerous doctors’ appointments, CT scans and x-rays, pain
medications, and significant time off of work. This reasonably satisfied at least
one of the Guidelines’ means of defining “serious bodily injury.” U.S.S.G.
4 § 1B1.1 cmt. n.1(L) (2016) (requiring the injury to “involv[e] extreme physical
pain,” result in “the protracted impairment of a function of a bodily member,
organ, or mental faculty,” or “require[] medical intervention such as surgery,
hospitalization, or physical rehabilitation”); see also United States v. Corbin, 972
F.2d 271, 272 (9th Cir. 1992) (per curiam) (affirming a “serious bodily injury”
finding when the victim was hit “on the head with a metal object . . . causing a
laceration which required a two-layer closure using more than 25 sutures”).
3. Real argues that his 48-month sentence is unreasonable because the
district court failed to address or account for his “nonfrivolous mitigation
arguments.” We reject this argument. The district court correctly calculated the
Sentencing Guidelines, see United States v. Carty, 520 F.3d 984, 991 (9th Cir.
2008) (en banc), and addressed the 18 U.S.C. § 3553(a) factors, noting, for
instance, Real’s supportive family and his co-defendants’ sentences, see United
States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir. 2013) (requiring that the district
court set forth a “sufficient explanation” for appellate review). Nor is Real’s
sentence substantively unreasonable. Although there was testimony that Real
ordered the other inmates to assault the officers, he still received a well below-
Guidelines sentence. See United States v. Treadwell, 593 F.3d 990, 1015 (9th Cir.
2010) (“[I]n the overwhelming majority of cases, a Guidelines sentence will fall
comfortably within the broad range of sentences that would be reasonable in the
5 particular circumstances.” (citation omitted)). As such, we affirm Real’s 48-month
sentence.
4. The parties agree that three of Appellants’ supervised release terms –
Standard Conditions 5, 6, and 14 – require modification in light of United States v.
Evans, 883 F.3d 1154 (9th Cir. 2018). We concur, and remand for the district
court to impose correct conditions in the first instance. See United States v. Ped,
No. 18-50179, 2019 WL 6042813, at *5 (9th Cir. Nov. 15, 2019).
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
6 FILED United States v. Perez, No. 18-50127+ DEC 4 2019 MOLLY C. DWYER, CLERK MILLER, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I join in the court’s disposition and reasoning, except as to part 2, which
affirms the application of the Sentencing Guidelines enhancement for “serious
bodily injury.” U.S.S.G. § 2A2.2 (2016). Circuit precedent establishes that a
district court must require proof by clear and convincing evidence in finding facts
supporting an enhancement, like this one, that results in an “increase in the total
number of offense levels” of greater than four, when “the length of the enhanced
sentence more than doubles the length of the sentence authorized by the initial
sentencing guideline range.” United States v. Jordan, 256 F.3d 922, 929 (9th Cir.
2001); accord United States v. Valle, 940 F.3d 473, 479–80 (9th Cir. 2019); United
States v. Hymas, 780 F.3d 1285, 1291–92 (9th Cir. 2015). Further, we have held
that an erroneous failure to apply that standard of proof constitutes plain error.
Jordan, 256 F.3d at 930–31. For the reasons given by the court, the district court
might have made the requisite findings under the correct standard of proof—“but it
might not have, either.” Hymas, 780 F.3d at 1292. The district court made no
findings at all, even though some of the key facts were disputed and the
presentence reports did not recommend application of the enhancement for serious
bodily injury. I would therefore vacate and remand for resentencing.