United States v. Darius Jordan ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 27 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 11-10276
Plaintiff - Appellee, D.C. No. 3:10-cr-00669-WHA-1
v.
MEMORANDUM *
DARIUS JORDAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued & Submitted July 18, 2012
San Francisco, California
Before: CLIFTON and MURGUIA, Circuit Judges, and COLLINS, District
Judge.**
Appellant Darius Jordan appeals following his jury conviction for illegally
possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Jordan argues that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
district court erred in denying his claim under Batson v. Kentucky, 476 U.S. 79(1986), that the prosecutor used a peremptory challenge in a discriminatory manner
by striking G.B., an African-American prospective juror, on account of her race.
Jordan also argues that the district court committed procedural error by incorrectly
calculating the applicable United States Sentencing Guidelines range when
sentencing him to a 63-month term of imprisonment.
We affirm the denial of Jordan’s Batson challenge because Jordan has not
“shown purposeful discrimination” at the third step of Batson under either the clear
error or de novo standards of review. Miller-El v. Cockrell, 537 U.S. 322, 329
(2003); see also United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009)
(explaining that the standard of review for a Batson claim may be de novo, as
opposed to clear error, where the trial court applies the incorrect legal standard).
For example, the record supports the contention that G.B.’s cough was disruptive
and we must defer to the district court’s firsthand observations of G.B.’s cough
under either standard of review. See Tolbert v. Page, 182 F.3d 677, 683-84 (9th
Cir. 1999) (“An appellate court can read a transcript of the voir dire, but it is not
privy to the unspoken atmosphere of the trial court—the nuance, demeanor, body
language, expression and gestures of the various players.”).
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Jordan also appeals the district court’s application of a two-level upward
adjustment to his offense level for reckless endangerment during flight, per
U.S.S.G. § 3C1.2. We reject Jordan’s argument that in order for the § 3C1.2
enhancement to apply to the act of discarding a weapon, the prosecution must point
to specific people who were present at the time and place where the weapon was
discarded. Although there was no evidence that anyone ever entered the dirt patch
where the gun was found, the patch could be accessed by climbing over a low wall.
See United States v. Lard, 327 F.3d 551, 553 (7th Cir. 2003) (stating that the
accessibility of the location where a weapon was discarded may justify § 3C1.2
enhancement). Furthermore, the dirt patch was located within the courtyard of a
densely populated housing development. Based on these factors, we cannot
conclude that the district court erred in applying the § 3C1.2 enhancement to
Jordan’s offense level.
AFFIRMED.
3