FILED
NOT FOR PUBLICATION JAN 23 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10226
Plaintiff-Appellee, D.C. No. 2:14-cr-00267-GEB
v.
MEMORANDUM*
TERRANCE J. CRUZ,
Defendant-Appellant,
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell Jr., District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Terrance J. Cruz appeals from the district court order affirming his
conviction and sentence after a bench trial before a magistrate judge for violating
the terms of a special use permit, in violation of 16 U.S.C. § 551 and 36 C.F.R.
§ 261.10(l). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Cruz contends that there was insufficient evidence for the magistrate judge
to find that he violated two conditions of his special use permit. The permit, which
authorized Cruz to collect pine cones from Eldorado National Forest, included
conditions that (1) the permit “must be in the Permittee’s possession while
harvesting and transporting products,” and “[c]opies are not allowed;” and (2) the
permit is “nontransferable.” In light of Cruz’s admission that he provided
photocopies of the permit to multiple individuals so that they could collect pine
cones outside of his presence, the district court correctly determined that sufficient
evidence supports Cruz’s conviction. See 36 C.F.R. § 261.10(l); United States v.
Nevils, 598 F.3d 1158, 1164-65 (9th Cir. 2010) (en banc). Cruz’s argument
regarding the rule of lenity is unavailing because there is no “grievous ambiguity
or uncertainty” in the conditions of the permit. See Barber v. Thomas, 560 U.S.
474, 488 (2010).
Furthermore, because “a reasonable person of ordinary intelligence” would
understand that Cruz’s conduct was prohibited by the conditions regarding
possession, photocopying, and transferability of the permit, the permit is not
unconstitutionally vague. See United States v. Weitzenhoff, 35 F.3d 1275, 1289
(9th Cir. 1993).
Finally, Cruz argues that the magistrate judge ran afoul of Federal Rule of
2 15-10226
Criminal Procedure 32 by announcing Cruz’s sentence before he was given an
opportunity to allocute. The record demonstrates, however, that the magistrate
judge gave Cruz an opportunity to address the court prior to imposing a final
sentence, thus complying with the requirements of Rule 32. See United States v.
Laverne, 963 F.2d 235, 237 (9th Cir. 1992) (no violation where the “court was able
to consider the defendant’s statement and was free to alter its view of the sentence
if the defendant offered a sufficient reason for changing its view”).
AFFIRMED.
3 15-10226