United States v. Noe Lugo ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50107
Plaintiff-Appellee, D.C. No.
3:17-cr-00482-JAH-1
v.
NOE RENE LUGO, AKA No-No, AKA MEMORANDUM*
Wolfie,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted August 15, 2019
Pasadena, California
Before: CALLAHAN and CHRISTEN, Circuit Judges, and WU,** District Judge.
Defendant-Appellant Noe Rene Lugo appeals his convictions and sentences
for one count of dealing in firearms pursuant to 18 U.S.C. § 922(a)(1)(A), and four
counts of felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g). He
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
contends that: (1) the district court plainly erred at trial in allowing improper expert
testimony from three law enforcement officers; and (2) it erred in failing to give a
jury instruction on separate acquisition or storage of the firearms as to his felon-in-
possession counts, resulting in multiplicitous convictions. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and VACATE Count 4 but
AFFIRM as to the remaining counts. In light of the partial vacatur, we REMAND
to the district court for re-sentencing.
As to the expert testimony contention, Defendant did not object to that
testimony at trial, so we review for plain error. United States v. Gomez-Norena,
908 F.2d 497, 500 (9th Cir. 1990). We hold that the three law enforcement
officials were not testifying as experts because their testimony was based on their
personal involvement in the investigation. See United States v. Barragan, 871
F.3d 689, 704 (9th Cir. 2017). Therefore, the district court did not plainly err.
Next, Plaintiff contests his convictions for Counts 3, 4, and 5 citing to: (1)
the district court’s failure to instruct the jury on separate acquisition or storage of
the weapons, (2) the duplicitous nature of the convictions, and (3) the lack of
sufficient evidence to sustain the convictions.1 Because Defendant failed to
1
In its Opposition Brief, the United States requests that we vacate one of
Defendant’s felon-in-possession counts (Count 4) based on evidence in the record
that Defendant acquired or stored the weapons underlying Count 3 and Count 4 at
the same time.
challenge the instructions below or raise the Double Jeopardy issue, we review that
claim for plain error.2 See United States v. Kilbride, 584 F.3d 1240, 1247 (9th Cir.
2009). We review claims of insufficient evidence de novo. United States v.
Sandoval-Gonzalez, 642 F.3d 717, 727 (9th Cir. 2011).
Under the plain error standard, we will affirm unless there has been: (1) an
error; (2) the error was plain; (3) the error affected substantial rights; and (4)
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). To determine
whether the failure to give a jury instruction, even on an element of a charge,
seriously affected the fairness of the proceeding, courts analyze whether there was
“overwhelming” and “essentially uncontroverted” evidence that establishes the
omitted element. See, e.g., Johnson v. United States, 520 U.S. 461, 469-70 (1997);
United States v. Cotton, 535 U.S. 625, 632-33 (2002).
In order to sustain multiple convictions of felon-in-possession, a jury must
find that the weapons charged in different counts were either stored or acquired
separately from one another. United States v. Szalkiewicz, 944 F.2d 653, 653 (9th
Cir. 1991) (per curiam) (“This court has held that only one offense is charged for
2
Relying on United States v. Garcia, 37 F.3d 1359 (9th Cir. 1994), Defendant
argues that we should review his instructional error challenge de novo because it
relates to Defendant’s sentencing. Garcia is inapplicable here as it simply stands
for the premise that a district court has a duty to instruct the jury that it must
specify the object of a conspiracy charge. See Garcia, 37 F.3d at 1370.
possession of firearms by a felon, regardless of the number of firearms involved,
absent a showing that the firearms were stored or acquired at different times and
places.”). However, even in the absence of an instruction on separate acquisition
or storage, we find that there is overwhelming evidence of separate acquisition of
the weapons charged in Counts 3 and Counts 5. Because there is essentially
uncontroverted evidence of separate storage, Defendant’s Double Jeopardy and
insufficient evidence arguments also fail.3 On Count 4, we agree with the United
States’ request and VACATE Defendant’s conviction of that count.
Despite the vacatur of Count 4, the United States urges us to affirm
Defendant’s sentence based on evidence in the record that the district court will
impose the same sentence. We instead follow the customary practice and remand
to allow the district court to consider the effect of the vacatur on Defendant’s
sentence. See United States v. Christensen, 828 F.3d 763, 821 (9th Cir. 2015), as
amended (July 8, 2016).
VACATED as to Count 4; AFFIRMED as to the remaining counts; and
REMANDED.
3
Defendant has pointed out that, during the pendency of this appeal, the Supreme
Court held that the United States must prove that a possessor of a firearm knew he
or she fell within one of the prohibited groups listed in 18 U.S.C. § 922(g). See
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Defendant, however, is not
entitled to relief under Rehaif because the record is clear that he knew he was a
felon as per 18 U.S.C. § 922(g)(1) during the times he possessed the firearms.