United States v. Francisco Alcaraz , 670 F. App'x 482 ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10320
Plaintiff-Appellee, D.C. No.
2:13-cr-00189-KJH-CWH-1
v.
FRANCISCO ALCARAZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted October 19, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
Francisco Alcaraz appeals his conviction and sentence for three counts of
being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant argues the district court erred by joining the three counts for trial
and abused its discretion by denying Defendant’s motion to sever. The district
court did not err in joining the counts because the counts were similar offenses.
United States v. Jawara, 474 F.3d 565, 578 (9th Cir. 2006); United States v.
Rousseau, 257 F.3d 925, 932 (9th Cir. 2001). The district court did not abuse its
discretion in denying Defendant’s motion to sever because the joinder of offenses
did not prejudice Defendant. United States v. VonWillie, 59 F.3d 922, 930 (9th
Cir. 1995).
Defendant argues the district court erred by denying Defendant’s motion to
suppress evidence of a firearm found by a police officer in the car he was driving.
The district court did not err because Defendant gave the officer consent to enter
the car. United States v. Rubio, 727 F.2d 786, 796 (9th Cir. 1983). The officer
then saw the firearm in plain view and immediately knew the firearm was
incriminating because the officer knew Defendant was a convicted felon. Roe v.
Sherry, 91 F.3d 1270, 1272 (9th Cir. 1996). Although the plain view exception to
the warrant requirement authorized seizure of the firearm, the police instead
obtained a valid warrant.
Defendant argues the district court abused its discretion by denying
Defendant’s request for a justification defense jury instruction. The district court
2
did not abuse its discretion because Defendant did not establish he had no
reasonable legal alternative to possessing a firearm. United States v. Lemon, 824
F.2d 763, 765 (9th Cir. 1987). There was insufficient evidence of justification
upon which to instruct the jury on the self-defense claim.
Defendant argues the district court erred in calculating Defendant’s base
offense level and criminal history during sentencing. The district court did not err
in calculating Defendant’s base offense level. Defendant’s prior convictions for
assault with a deadly weapon, in violation of Nevada Revised Statute § 200.471,
and robbery with the use of a deadly weapon, in violation of Nevada Revised
Statutes §§ 200.380, 193.165, qualify as crimes of violence for purposes of
applying United States Sentencing Guideline § 2K2.1(a)(2). Camacho-Cruz v.
Holder, 621 F.3d 941, 943 (9th Cir. 2010); United States v. Harris, 572 F.3d 1065,
1066 (9th Cir. 2009). The district court did not err in calculating Defendant’s
criminal history score. The district court properly applied United States
Sentencing Guideline § 4A1.1(e). Defendant’s two sentences were imposed on the
same day, there was no intervening arrest, and Defendant’s sentence for assault
with a deadly weapon resulted from a conviction of a crime of violence. See
U.S.S.G. § 4A1.2(a)(2); Camacho-Cruz, 621 F.3d at 943. Even if the district court
erred in calculating Defendant’s criminal history score, any error was harmless
3
because Defendant would have been assigned to criminal history Category VI
regardless. U.S.S.G. § 4A1.1.
AFFIRMED.
4