FILED
NOT FOR PUBLICATION
AUG 11 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50086
Plaintiff- Appellee, D.C. No. 3:13-cr-01569-CAB-1
v.
MEMORANDUM*
GLEN LEE GREEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy A. Bencivengo, District Judge, Presiding
Submitted August 7, 2015**
Pasadena, California
Before: SILVERMAN, SACK***, and WARDLAW, Circuit Judges.
Glen Lee Green appeals his conviction and sentence for one count of
violating 18 U.S.C. § 922(g)(1), which makes it a crime for a person who has been
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
convicted of a felony to possess a firearm. With respect to his conviction, Green
argues that the government made two improper statements during closing
arguments and asked one of the defense witnesses an improper question. With
respect to his sentence, Green argues that the district court failed to adequately
appreciate its authority to consider rehabilitation in crafting a sentence, and failed
to adequately explain its reasons for rejecting his argument for a downward
departure. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, and we affirm both Green's conviction and his sentence.
Because Green did not object to any of the purported errors at trial or
sentencing, we review for plain error. See United States v. Rangel-Guzman, 752
F.3d 1222, 1224 (9th Cir. 2014); United States v. Joseph, 716 F.3d 1273, 1276-77
(9th Cir. 2013). "Plain error is (1) error, (2) that is plain, and (3) that affects
substantial rights. If these three conditions of the plain error test are met, an
appellate court may exercise its discretion to notice a forfeited error that (4)
seriously affects the fairness, integrity, or public reputation of judicial
proceedings." Joseph, 716 F.3d at 1277 (citations and internal quotation marks
omitted). An error affects a criminal defendant's substantial rights where "the
probability of a different result is sufficient to undermine confidence in the
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outcome of the proceeding." United States v. Ameline, 409 F.3d 1073, 1078 (9th
Cir. 2005) (en banc) (internal quotation marks omitted).
The district court did not commit plain error during trial so as to warrant
reversal of Green's conviction. The government's characterization of the word
"bizack" as a reference to the firearm Green was found guilty of possessing was
not improper. Read in context, the government was not asserting a particular
definition of the word "bizack" when it made the challenged statement. Instead, it
was urging the jury to infer that "bizack" meant "gun." "It is well settled that a
prosecutor in a criminal case has a special obligation to avoid improper
suggestions, insinuations, and especially assertions of personal knowledge."
United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) (internal quotation
marks omitted). Notwithstanding this rule, "[p]rosecutors have considerable
leeway to strike 'hard blows' based on the evidence and all reasonable inferences
from the evidence." United States v. Henderson, 241 F.3d 638, 652 (9th Cir.
2000). Here, the government was entitled to encourage the jury to draw inferences
from the evidence–including the inference that when the defendant used the term
"bizack" in a recorded telephone conversation he meant "gun." See, e.g., United
States v. Hermanek, 289 F.3d 1076, 1099-1100 (9th Cir. 2002) (urging the jury to
infer that vague statements referred to cocaine was not error). Moreover, for the
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reasons stated below, any error was unlikely to have affected the outcome of the
trial.
The government concedes that it erred when it stated that it was "confident
the evidence shows that [Green] would have moved the marijuana and the gun and
everything else" if he had time. In order "to ascertain whether the vouching
amounts to plain error, the court balances the seriousness of the vouching against
the effectiveness of any curative instruction and the closeness of the case." United
States v. Brooks, 508 F.3d 1205, 1211 (9th Cir. 2007) (alterations and internal
quotation marks omitted). This isolated misstatement was offset by the
government's admonitions that the jurors should determine what facts the evidence
had established. And, in any event, there was "substantial independent evidence of
guilt" in this case. Id. The government presented evidence that Green resided, at
least part-time, in the southwest bedroom, including Green's own recorded
statement to that effect, and that the firearm was recovered from among his
possessions and had his DNA on it. This was sufficient for the jury to conclude
that Green constructively possessed the firearm, even absent the government's
isolated statement that it was "confident" that Green would have moved the gun
had he had the time to do so.
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Green next argues that the government improperly questioned defense
witness Emory Richardson about his belief in Green's guilt. Even if the
government's question was improper insofar as it could be construed as a request
for a legal opinion, the question itself is unlikely to have affected the outcome of
the trial. The court instructed the jury that the lawyers' questions were not
evidence, and "[a] jury is presumed to follow its instructions." Weeks v. Angelone,
528 U.S. 225, 234 (2000). Moreover, Richardson's answer is unlikely to have
prejudiced Green because he responded that he did not think Green was guilty.
Nor did the district court commit plain error with respect to sentencing. The
sentencing transcript demonstrates that the district court properly comprehended its
authority to consider rehabilitation. It acknowledged that Green had "positive
dreams to want to make a better life for himself and his daughter," but despite the
desire "to vary here on the optimistic hope that [he was] going to have a brighter
future," the court could not "justify going lower than the low end of the guideline
range in this case for [him] . . . [and it] d[idn't] really see a reason to vary outside
of [the] guidelines here."
Finally, although the district court did not offer a detailed explanation of
why "the sentence imposed [was] sufficient [to] . . . avoid unwarranted disparity
with the sentences of others with similar conduct and record," we can "infer[] from
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the record as a whole" that the district court likely rejected Green's argument
because (a) Green's within-guidelines sentence was only marginally higher than
those of the defendants he identified, and (b) he, unlike those defendants, did not
accept responsibility for his crime. United States v. Emmett, 749 F.3d 817, 821
(9th Cir. 2014) (internal quotation marks and alterations omitted).
AFFIRMED.
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