United States v. Netzahualcoyotl Cerna ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10049
Plaintiff-Appellee, D.C. No.
1:19-cr-00096-DAD-BAM-1
v.
NETZAHUALCOYOTL CERNA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted December 7, 2020**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,*** District
Judge.
Netzahualcoyotl Cerna appeals from the district court’s judgment and
sentence following a jury trial. The jury convicted Cerna of using or carrying a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c); (2) possessing
a firearm as a convicted felon, 18 U.S.C. § 922(g)(1); and (3) possessing
methamphetamine with intent to distribute it, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A).
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.
Because Cerna did not object at trial to any error that he raises on appeal, all
issues here are reviewed for plain error. United States v. Johnson, 979 F.3d 632,
636 (9th Cir. 2020); United States v. Juan, 704 F.3d 1137, 1140 (9th Cir. 2013). To
establish plain error, Cerna must show that: “(1) there was an error, (2) the error is
clear or obvious, (3) the error affected his substantial rights, and (4) the error
seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Johnson, 979 F.3d at 636.
1. Cerna argues that the district court violated Federal Rule of Evidence
704(b) by allowing Officer Joshua Sharp, an expert witness, to opine on Cerna’s
intent to distribute methamphetamine. Officer Sharp testified that Cerna possessed
121.9 grams of methamphetamine “for distribution.” Rule 704(b) prohibits an
expert witness from stating an opinion that a “[criminal] defendant did or did not
have a mental state or condition that constitutes an element of the crime charged.”
Fed. R. Evid. 704(b); United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997)
(en banc) (stating that a prohibited “opinion or inference” under Rule 704(b) is one
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that, if accepted, necessarily compels the conclusion that the criminal defendant had
the requisite mental state for the charged crime).
Here, even assuming the district court clearly erred by allowing Officer Sharp
to testify that Cerna possessed methamphetamine “for distribution,” that error did
not affect Cerna’s substantial rights. United States v. Olano, 507 U.S. 725, 734
(1993) (explaining that an error affects substantial rights when the error is
prejudicial, that is, “affect[s] the outcome of the district court proceedings”). Ample
evidence showed that Cerna possessed 121.9 grams of methamphetamine with intent
to distribute it. Indeed, Cerna admitted that he intended to sell the 121.9 grams of
methamphetamine (worth between $600 and $700) to make money. Cerna fails to
demonstrate that, without the district court’s Rule 704(b) error, the outcome of his
trial would have been different. Cerna’s substantial rights were not affected. He
therefore fails to satisfy the plain-error standard.
2. Cerna argues that the district court erred by not sua sponte striking a
potential juror1 because she had a panic disorder. 28 U.S.C. § 1865(b)(4) provides
that a district judge “shall deem any person qualified” to serve on a jury unless that
person “is incapable, by reason of mental or physical infirmity, to render satisfactory
jury service.” Here, in response to the district judge’s questions, the potential juror
stated that medication and breathing techniques controlled the panic disorder and
1
We note that the potential juror did not serve on Cerna’s jury.
3
permitted him or her to think clearly. Nothing in the record suggests that the panic
disorder made the potential juror “incapable” of rendering “satisfactory” jury
service. 28 U.S.C. § 1865(b)(4). The district court did not err but, assuming it did,
the district court did not clearly err because the plain language of § 1865(b)(4)
supports the district court’s decision, and Cerna cites no case law requiring a
contrary result. See id. (requiring the district court to deem any potential juror
qualified unless “incapable” of rendering “satisfactory” jury service due to a mental
infirmity).
3. Cerna further argues that the district court procedurally erred because
it did not explicitly analyze the sentencing factors under 18 U.S.C. § 3553(a). The
district court must consider the § 3553(a) factors and impose a sentence “sufficient[]
but not greater than necessary” to achieve the statutory objectives of sentencing.
Rita v. United States, 551 U.S. 338, 348 (2007) (quoting 18 U.S.C. § 3553(a)). But
the “district court need not tick off each of the § 3553(a) factors to show that it has
considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc). Indeed, even when a district court fails to mention “§ 3553(a),” it simply
“may be clear from the [district] court’s experience and consideration of the record
that the factors were properly taken into account.” United States v. Trujillo, 713
F.3d 1003, 1009 (9th Cir. 2013).
Here, the district court reviewed Cerna’s sentencing memorandum,
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Presentence Investigation Report, and letters, and stated that it would give “due
weight” to § 3553(a)’s factors. The district court did not procedurally err by failing
to tick off each sentencing factor under § 3553(a). See Carty, 520 F.3d at 995–96
(holding that a district court did not procedurally err, even without mentioning
§ 3553(a), because the district judge presided over the defendant’s trial, reviewed
the Presentence Investigation Report, reviewed the parties’ submissions discussing
the § 3553(a) factors, and listened to testimony at the sentencing hearing). Cerna
fails to meet the plain-error standard.
Cerna also argues that the district court failed to adequately explain why it
rejected his two specific reasons for a downward variance: (1) Cerna’s long-term
substance abuse problem fueled his drug dealings; and (2) he could be released early
to a charitable organization that would rehabilitate him. Here, the district court
acknowledged Cerna’s substance-abuse problems and Cerna’s acceptance into a
rehabilitation program. But the district court decided not to vary downward because
Cerna’s “extensive criminal history” involved selling drugs for more than twenty
years. In sum, the district court considered Cerna’s arguments for a downward
variance, but the district court rejected them due to Cerna’s extensive criminal
history.2 The district court did not plainly err.
2
We note that the district court’s reasons for rejecting Cerna’s request for a
downward variance are not similar to the district court’s “total omission” of an
explanation rejecting arguments for a downward variance in United States v.
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AFFIRMED.
Trujillo, 713 F.3d at 1009–10. There, the district court did not attempt “even to
dismiss [the defendant’s arguments] in shorthand.” Id. at 1010. Here, the district
court acknowledged and rejected Cerna’s arguments.
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