NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50033
Plaintiff-Appellee, D.C. No. v. 2:17-cr-00044-MWF-2
SHANE ARNOLD, AKA Shay Arnaldi, AKA Alexander Arnold, AKA Shane MEMORANDUM* Enrique Arnold, AKA Shane Eric Arnold, AKA Shay,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Submitted November 20, 2020** Pasadena, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and PRESNELL,*** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. Shane Arnold appeals his conviction following a bench trial for two heroin-
distribution charges under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) and for
being in possession of a firearm with ammunition after a domestic-violence
misdemeanor conviction in violation of 18 U.S.C. § 922(g)(9). Arnold also appeals
his sentence. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291,
and we affirm.
I. Arnold’s Motion to Suppress
Arnold challenges the district court’s denial of his motion to suppress
evidence seized under the search warrant executed on a converted garage on South
Wilton Place in Los Angeles, California. We review a district court’s denial of a
motion to suppress relating to a search warrant de novo. United States v. Jordan,
291 F.3d 1091, 1099 (9th Cir. 2002). We review for clear error a district court’s
underlying factual findings relating to a motion to suppress, such as “whether any
statements were false or omitted and whether any such statements were
intentionally or recklessly made.” United States v. Elliot, 322 F.3d 710, 714 (9th
Cir. 2003).
The Fourth Amendment requires that a search warrant be supported by a
truthful factual showing sufficient to comprise probable cause. Franks v.
Delaware, 438 U.S. 154, 164–65 (1978). Arnold argues that evidence seized via
the Wilton search warrant must be suppressed under Franks because the affidavit
2 19-50033 supporting the warrant contained material misrepresentations and omissions. To
suppress evidence under Franks, a defendant must establish that “the affiant officer
intentionally or recklessly made false or misleading statements or omissions in
support of the warrant” and that, after removing the misstatements and
supplementing the omissions, “the affidavit’s remaining content is insufficient to
establish probable cause.”1 United States v. Martinez-Garcia, 397 F.3d 1205, 1215
(9th Cir. 2005) (quoting Franks, 438 U.S. at 155–56).
Arnold first argues that Detective Marc Tarzia misstated his observations
from his surveillance of a drug transaction described in the affidavit. Arnold’s
arguments during his Franks hearing and in his trial briefs all pertain to alleged
misstatements by Detective Anthony Chavez and his asserted omissions. Arnold
did not argue below that Detective Tarzia made any misrepresentations and the
district court did not consider or address that issue. A defendant who raises new
theories on appeal in support of a motion to suppress must demonstrate good cause
before he or she is permitted to proceed on those theories. United States v.
Guerrero, 921 F.3d 895, 897–98 (9th Cir. 2019). Because Arnold has not argued
good cause, his argument with respect to Detective Tarzia cannot succeed. Further,
1 When considering a motion to suppress under Franks, this Court reviews both whether any misstatement or omission is material and whether probable cause exists following correction of such a misstatement or omission de novo. Elliot, 322 F.3d at 714.
3 19-50033 even in absence of waiver, there were many indicators apart from Detective
Tarzia’s observation that evidence of a crime would be found at the Wilton garage
sufficient to establish probable cause. These included the fact that a confidential
informant met with Arnold several different times at the garage to discuss the sale
of drugs, and that the informant was given sample drugs at some of those meetings.
The only remaining Franks argument is Arnold’s assertion that the Wilton-
warrant affidavit omitted the fact that no drug seizures or arrests had been made in
connection with the Wilton address. When reviewing omissions, a court must
determine whether the omitted facts were “required to prevent technically true
statements in the affidavit from being misleading.” United States v. Ruiz, 758 F.3d
1144, 1148 (9th Cir. 2014) (quoting Ewing v. City of Stockton, 588 F.3d 1218,
1224 (9th Cir. 2009)).
The only statement in the affidavit that Arnold argues is misleading is that
the confidential informant had “led to multiple Title III affidavits and multiple
narcotics seizures.” Arnold asserts that by omitting that none of these seizures
occurred at the Wilton address, law enforcement implied that it had confirmed the
presence of drugs at the Wilton address, when in fact it had not. But this is the very
reason officers needed a search warrant—to obtain such evidence. The affidavit
otherwise contains a thorough summary of the investigation over the course of
several months which included several statements from Arnold regarding his
4 19-50033 activities at Wilton and detailed that two narcotics samples were obtained from
Arnold. The asserted omissions do not make the affidavit misleading and even if
they were supplemented, the affidavit would have provided probable cause for the
search warrant.
II. The District Court’s Rehaif Error
No plain error resulted from the indictment’s failure to allege, and the
district court’s failure to find, the knowledge element of a prosecution under 18
U.S.C. § 922(g) as established in Rehaif v. United States, 139 S. Ct. 2191, 2200
(2019) (holding that the government “must prove [both] that the defendant knew
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50033
Plaintiff-Appellee, D.C. No. v. 2:17-cr-00044-MWF-2
SHANE ARNOLD, AKA Shay Arnaldi, AKA Alexander Arnold, AKA Shane MEMORANDUM* Enrique Arnold, AKA Shane Eric Arnold, AKA Shay,
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding
Submitted November 20, 2020** Pasadena, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and PRESNELL,*** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gregory A. Presnell, United States District Judge for the Middle District of Florida, sitting by designation. Shane Arnold appeals his conviction following a bench trial for two heroin-
distribution charges under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) and for
being in possession of a firearm with ammunition after a domestic-violence
misdemeanor conviction in violation of 18 U.S.C. § 922(g)(9). Arnold also appeals
his sentence. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291,
and we affirm.
I. Arnold’s Motion to Suppress
Arnold challenges the district court’s denial of his motion to suppress
evidence seized under the search warrant executed on a converted garage on South
Wilton Place in Los Angeles, California. We review a district court’s denial of a
motion to suppress relating to a search warrant de novo. United States v. Jordan,
291 F.3d 1091, 1099 (9th Cir. 2002). We review for clear error a district court’s
underlying factual findings relating to a motion to suppress, such as “whether any
statements were false or omitted and whether any such statements were
intentionally or recklessly made.” United States v. Elliot, 322 F.3d 710, 714 (9th
Cir. 2003).
The Fourth Amendment requires that a search warrant be supported by a
truthful factual showing sufficient to comprise probable cause. Franks v.
Delaware, 438 U.S. 154, 164–65 (1978). Arnold argues that evidence seized via
the Wilton search warrant must be suppressed under Franks because the affidavit
2 19-50033 supporting the warrant contained material misrepresentations and omissions. To
suppress evidence under Franks, a defendant must establish that “the affiant officer
intentionally or recklessly made false or misleading statements or omissions in
support of the warrant” and that, after removing the misstatements and
supplementing the omissions, “the affidavit’s remaining content is insufficient to
establish probable cause.”1 United States v. Martinez-Garcia, 397 F.3d 1205, 1215
(9th Cir. 2005) (quoting Franks, 438 U.S. at 155–56).
Arnold first argues that Detective Marc Tarzia misstated his observations
from his surveillance of a drug transaction described in the affidavit. Arnold’s
arguments during his Franks hearing and in his trial briefs all pertain to alleged
misstatements by Detective Anthony Chavez and his asserted omissions. Arnold
did not argue below that Detective Tarzia made any misrepresentations and the
district court did not consider or address that issue. A defendant who raises new
theories on appeal in support of a motion to suppress must demonstrate good cause
before he or she is permitted to proceed on those theories. United States v.
Guerrero, 921 F.3d 895, 897–98 (9th Cir. 2019). Because Arnold has not argued
good cause, his argument with respect to Detective Tarzia cannot succeed. Further,
1 When considering a motion to suppress under Franks, this Court reviews both whether any misstatement or omission is material and whether probable cause exists following correction of such a misstatement or omission de novo. Elliot, 322 F.3d at 714.
3 19-50033 even in absence of waiver, there were many indicators apart from Detective
Tarzia’s observation that evidence of a crime would be found at the Wilton garage
sufficient to establish probable cause. These included the fact that a confidential
informant met with Arnold several different times at the garage to discuss the sale
of drugs, and that the informant was given sample drugs at some of those meetings.
The only remaining Franks argument is Arnold’s assertion that the Wilton-
warrant affidavit omitted the fact that no drug seizures or arrests had been made in
connection with the Wilton address. When reviewing omissions, a court must
determine whether the omitted facts were “required to prevent technically true
statements in the affidavit from being misleading.” United States v. Ruiz, 758 F.3d
1144, 1148 (9th Cir. 2014) (quoting Ewing v. City of Stockton, 588 F.3d 1218,
1224 (9th Cir. 2009)).
The only statement in the affidavit that Arnold argues is misleading is that
the confidential informant had “led to multiple Title III affidavits and multiple
narcotics seizures.” Arnold asserts that by omitting that none of these seizures
occurred at the Wilton address, law enforcement implied that it had confirmed the
presence of drugs at the Wilton address, when in fact it had not. But this is the very
reason officers needed a search warrant—to obtain such evidence. The affidavit
otherwise contains a thorough summary of the investigation over the course of
several months which included several statements from Arnold regarding his
4 19-50033 activities at Wilton and detailed that two narcotics samples were obtained from
Arnold. The asserted omissions do not make the affidavit misleading and even if
they were supplemented, the affidavit would have provided probable cause for the
search warrant.
II. The District Court’s Rehaif Error
No plain error resulted from the indictment’s failure to allege, and the
district court’s failure to find, the knowledge element of a prosecution under 18
U.S.C. § 922(g) as established in Rehaif v. United States, 139 S. Ct. 2191, 2200
(2019) (holding that the government “must prove [both] that the defendant knew
he possessed a firearm and that he knew he belonged to the relevant category of
persons barred from possessing a firearm.”). We review for plain error an
insufficient indictment and an incorrect legal standard claim2 raised for the first
time on appeal. Johnson, 2020 WL 6268027, at *3. Under plain error review, relief
is not warranted unless “(1) there was an error, (2) the error is clear or obvious, (3)
the error affected [the defendant’s] substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings.” Id.
2 Arnold frames his argument as a “sufficiency of the evidence” claim. This Court recently held in United States v. Johnson, --- F.3d ---, 2020 WL 6268027 (9th Cir. 2020) that an identical claim was “best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt—specifically, by omitting the knowledge-of-status element now required under Rehaif.” Id. at *3.
5 19-50033 (citing United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019)).
Although the first two prongs have been satisfied, we conclude that Arnold
has not satisfied the third or fourth prongs of the plain error standard, which
require him to show that “but for the error, the outcome of the proceedings would
have been different.” Benamor, 937 F.3d at 1188 (citing Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016)). The trial record indicates that Arnold
had previously been convicted of a domestic violence misdemeanor under
California Penal Code § 273.5(a), which prohibits the infliction of corporal injury
on a cohabitant or the mother or father of a defendant’s child. The trial record
further indicates that, as a part of his conviction, Arnold enrolled in a 52-week
domestic violence program. This evidence proves beyond a reasonable doubt that
Arnold had the requisite knowledge under Rehaif for a conviction under 18 U.S.C.
§ 922(g)(9). See Benamor, 937 F.3d at 1189.
III. Arnold’s Sentence
We review a district court’s interpretation of the United States Sentencing
Guidelines de novo, its application of those Guidelines for abuse of discretion, and
its factual findings for clear error. United States v. Treadwell, 593 F.3d 990, 999
(9th Cir. 2010), overruled on other grounds by United States v. Miller, 953 F.3d
1095 (9th Cir. 2020). A district court abuses its discretion if it applies the
Guidelines “in a way that is ‘illogical, implausible, or without support in inferences
6 19-50033 that may be drawn from the facts in the record.’” Id. at 999 (quoting United States
v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)).
U.S.S.G. § 2D1.1(b)(1) provides for a two-level increase in a defendant’s
sentencing score if a “dangerous weapon (including a firearm) was possessed”
during the commission of a drug trafficking crime. The district court need not find
a connection between the weapon and the offense, just that the defendant possessed
the weapon during commission of the offense. United States v. Restrepo, 884 F.2d
1294, 1296 (9th Cir. 1989). The enhancement is appropriate “unless it is clearly
improbable that the weapon was connected with the offense.” United States v.
Boykin, 785 F.3d 1352, 1364 (9th Cir. 2015). The district court properly applied
the enhancer to Arnold’s sentencing score by considering “all of the offense
conduct, not just the crime of conviction.” See United States v. Willard, 919 F.2d
606, 610 (9th Cir. 1990) (quoting U.S.S.G. § 2D1.1 n. 3 (2010)). Arnold was
convicted of conspiracy drug trafficking in connection with his activities at the
Wilton address. A search of the Wilton address resulted in the seizure of two
firearms, marijuana, and other drug trafficking contraband. His possession of the
firearms at the address where he carried out the drug trafficking conspiracy
supports the application of this enhancement. Boykin, 785 F.3d at 1364.
AFFIRMED.
7 19-50033