FILED
NOT FOR PUBLICATION
MAR 21 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10365
Plaintiff-Appellee, D.C. No.
2:11-cr-00334-APG-GWF
v.
TRACEY L. BROWN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted March 16, 2018**
San Francisco, California
Before: McKEOWN, FUENTES,*** and BEA, Circuit Judges.
Defendant Tracey Brown appeals his jury conviction and sentence for Hobbs
Act robbery in violation of 18 U.S.C. § 1951, brandishing a firearm during a crime
*
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 Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Sufficiency of the Evidence
Brown argues that the government failed to present sufficient evidence that
the robbery affected interstate commerce. We review de novo challenges to the
sufficiency of the evidence supporting a conviction. United States v. Bennett, 621
F.3d 1131, 1135 (9th Cir. 2010). We construe the evidence “in the light most
favorable to the prosecution” and consider whether it is “sufficient to allow any
rational juror to conclude that the government has carried its burden of proof.”
United States v. Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010).
“[T]he government need only show a de minimis effect on interstate
commerce to fulfill the jurisdictional element of the Hobbs Act.” United States v.
Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004). Here, items for sale in the store,
including the cigarettes that Brown stole, were shipped from out of state.
Moreover, as a result of the robbery, the store was closed and at least one customer
was turned away. On this evidence, the jury rationally found that the robbery
affected interstate commerce. See United States v. Panaro, 266 F.3d 939, 948
2
(9th Cir. 2001) (“[E]ven a slight impact on interstate commerce is sufficient to
sustain a conviction . . . under the Hobbs Act.”).
2. Pretrial and Trial Errors
In addition to his sufficiency of the evidence challenge, Brown alleges a
variety of pretrial and trial errors.
First, Brown contends that the district court erred in accepting the verdict
before answering the jury’s request to distinguish “commerce” and “interstate
commerce.” We review a district court’s response to a juror inquiry for abuse of
discretion. United States v. Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir. 2004).
Here, the jury withdrew its request before the district court could respond.
Because the jury no longer “request[ed] clarification” when it gave its verdict, the
district court did not abuse its discretion. United States v. McIver, 186 F.3d 1119,
1130 (9th Cir. 1999), overruled on other grounds as recognized by United States v.
Pineda-Moreno, 688 F.3d 1087, 1091 (9th Cir. 2012).
Second, Brown asserts that the district court erred in denying his motion to
suppress evidence obtained from a traffic stop and subsequent show-up in which
the store clerk identified him. We address each argument in turn.
3
We review de novo the denial of a motion to suppress. United States v.
Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004). However, the underlying factual
findings are reviewed for clear error. Id. Under the Fourth Amendment, law
enforcement officials may conduct an investigatory stop of a vehicle only if they
possess “reasonable suspicion.” United States v. Twilley, 222 F.3d 1092, 1095
(9th Cir. 2000) (citation and quotation marks omitted). After an evidentiary
hearing, the magistrate judge found that the officer stopped the car carrying Brown
because its headlights were off at night in violation of N.R.S. § 484D.100.1(a). In
making this finding, which the district court adopted, the magistrate judge did not
clearly err in crediting the officer’s testimony over Brown’s testimony. See
United States v. Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998) (“This court gives
special deference to the district court’s credibility determinations.”).
We also review de novo the constitutionality of pretrial identification
procedures. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985). “If
under the totality of the circumstances the identification is sufficiently reliable,
identification testimony may properly be allowed into evidence even if the
identification was made pursuant to an unnecessarily suggestive procedure.” Id.
Here, the store clerk accurately described Brown in a written statement after the
4
robbery and confidently identified him shortly thereafter. Accordingly, even if the
show-up was impermissibly suggestive, the totality of the circumstances indicates
that the identification was still sufficiently reliable.
Third, Brown argues that the district court erred in denying a mistrial based
on his co-defendant’s testimony that referenced “prior incidents.” We review the
denial of a motion for a mistrial for an abuse of discretion. United States v.
English, 92 F.3d 909, 912 (9th Cir. 1996). Brown claims that this statement was
impermissible character evidence that he committed other robberies. However,
this argument fails because the district court gave a timely curative instruction and
the government’s case was strong.1 See United States v. Randall, 162 F.3d 557,
559 (9th Cir. 1998) (“Ordinarily, cautionary instructions or other prompt and
effective actions by the trial court are sufficient to cure the effects of improper
comments, because juries are presumed to follow such cautionary instructions.”).
Fourth, Brown contends that the district court erred in denying his motion
for discovery regarding a non-testifying officer’s personnel file. However, such
discovery is not required as to an who officer does not testify. See United States
1
For these reasons, we also reject Brown’s argument that the district court
erred in replaying—at the jury’s request—the audio recording of his co-
defendant’s entire trial testimony.
5
v. Henthorn, 931 F.2d 29, 31 n.2 (9th Cir. 1991) (“We need not reach the issue [of]
whether the prosecution had an obligation to examine [a detective’s] files, as the
record shows that [the detective] did not testify at trial.”). Brown has also not
shown that the government violated its obligation to disclose exculpatory material
under Brady v. Maryland, 373 U.S. 83 (1963).
Fifth, Brown asserts that the district court erred in denying his challenge
under Batson v. Kentucky, 476 U.S. 79 (1986), as to the prosecution’s claimed use
of challenges to three African-American potential jurors. Whether a district court
is obligated to apply the Batson analysis to a defendant’s claim of purposeful
discrimination is a question of law reviewed de novo. See United States v. Alanis,
335 F.3d 965, 967 n.1 (9th Cir. 2003). In Batson v. Kentucky, the Supreme Court
prescribed a three-step test for assessing claims of discriminatory jury selection.
Batson, 476 U.S. at 96. At the first step, the defendant must establish a “prima
facie case of purposeful discrimination” by showing that “he is a member of a
cognizable racial group” and “the prosecutor . . . exercised peremptory challenges
to remove . . . members of the defendant’s race.” Id. Here, Brown failed to make
out a “prima facie case of purposeful discrimination.” As Brown admits, two of
the African-American potential jurors were removed for cause, and the other was
6
not called to sit on the jury. No peremptory challenge was exercised as to the
third potential juror. Thus, the Batson challenge was properly denied.
Sixth, Brown contends that the district court erred in not severing the felon
in possession count. We review the denial of a motion for severance for an abuse
of discretion. United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011).
Here, the evidence was substantial, the parties stipulated to the prior felony, and
the district court instructed the jury that it could only consider the stipulation in
connection with the felon in possession count. As such, the district court did not
abuse its discretion in denying Brown’s motion to sever. See United States v.
Vasquez-Velasco, 15 F.3d 833, 845–46 (9th Cir. 1994) (noting that a defendant
must show “clear, manifest, or undue prejudice” to justify reversal of the district
court’s failure to sever (citation and quotation marks omitted)).
Seventh, Brown maintains that the district court erred in denying his post-
trial motion for grand jury transcripts. Under Rule 6(e)(3)(E) of the Federal Rules
of Criminal Procedure, a court “may authorize disclosure” of grand jury transcripts
“at the request of a defendant who shows that a ground may exist to dismiss the
indictment because of a matter that occurred before the grand jury.” Fed. R. Crim.
P. 6(e)(3)(E). Brown failed to show that “a ground may exist to dismiss the
7
indictment,” because “even if the grand jury might have been misled . . . the
existence of probable cause [wa]s not in doubt” after Brown was convicted beyond
a reasonable doubt. United States v. Caruto, 663 F.3d 394, 402 (9th Cir. 2011).
Thus, the district court did not err in denying Brown’s motion.
3. Sentencing Errors
Brown also raises several issues with respect to his sentence.
First, Brown argues that the district court erred in sentencing him as a career
offender based on his prior Nevada robbery convictions.2 We review de novo a
district court’s determination that a defendant qualifies as a career offender.
United States v. Crawford, 520 F.3d 1072, 1077 (9th Cir. 2008). As the district
court found, Nevada robbery “categorically qualifies as a crime of violence for
purposes of the career offender sentencing enhancement.” United States v.
Harris, 572 F.3d 1065, 1066 (9th Cir. 2009). Accordingly, Brown’s argument
fails.3
2
On August 1, 2016, an amended definition of “crime of violence” under
U.S.S.G. § 4B1.2 took effect. However, since Brown’s sentence was originally
scheduled for July 2016, the district court sentenced him—on his request—under
the pre-August 2016 version of the Sentencing Guidelines. Accordingly, all
references herein are to the pre-August 2016 definition of “crime of violence.”
3
To the extent that Brown argues otherwise, the district court also did not
err in finding that Hobbs Act robbery is a crime of violence to which the career
8
Second, Brown asserts that his 2005 Nevada robbery conviction should not
have qualified as a prior crime of violence because it was obtained through a plea
agreement under North Carolina v. Alford, 400 U.S. 25 (1970). However, the fact
that the 2005 Nevada robbery conviction resulted from an Alford plea—which
allows a defendant to plead guilty while asserting innocence—does not alter our
analysis. See United States v. Guerrero-Velasquez, 434 F.3d 1193, 1197 (9th Cir.
2006) (“The question under the sentencing guidelines is whether a defendant has ‘a
conviction for a . . . crime of violence,’ not whether the defendant has admitted to
being guilty of such a crime.” (citation omitted and emphasis in original)). As
such, the district court correctly found that Brown’s 2005 Nevada robbery
conviction was a valid predicate for career offender status.
Third, Brown contends that his 30-year prison sentence violates the Eighth
Amendment. We review whether a sentence violates the Eighth Amendment de
novo. United States v. Shill, 740 F.3d 1347, 1355 (9th Cir. 2014). “Generally, as
long as the sentence imposed on a defendant does not exceed statutory limits, this
court will not overturn it on Eighth Amendment grounds.” United States v.
offender guideline applies. See United States v. Mendez, 992 F.2d 1488, 1491
(9th Cir. 1993) (holding that conspiracy to commit Hobbs Act robbery is a “crime
of violence” under 18 U.S.C. § 924(c)(3)(B)).
9
Parker, 241 F.3d 1114, 1117–18 (9th Cir. 2001). Here, Brown’s sentence is not
“grossly disproportionate” to his offense, taken together with his criminal history.
United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998) (citation and
quotation marks omitted). Therefore, Brown’s Eighth Amendment claim fails.
Fourth, Brown maintains that he should be resentenced in light of the
Supreme Court’s recent decision in Dean v. United States, 137 S. Ct. 1170, 1176–
77 (2017), which held that a court may consider the consecutive mandatory
minimum required by § 924(c) in calculating a just sentence for the underlying
predicate offense. However, in Dean, the district court explicitly stated that it
believed it “was required to disregard [the defendant’s] 30-year mandatory
minimum when determining the appropriate sentences for [the defendant’s] other
counts of conviction.” Id. at 1175. In contrast, here, the district court did not
find—let alone suggest—that it could not consider the 7-year mandatory minimum
sentence for the § 924(c)(1)(A)(ii) count in sentencing Brown on the other counts.
Thus, Brown’s claim under Dean is unavailing.
Finally, Brown argues that cumulative error warrants reversal. We reject
this argument as well. See United States v. Jeremiah, 493 F.3d 1042, 1047 (9th
10
Cir. 2007) (“[B]ecause we hold that there was no error committed by the district
court, [the defendant’s] theory of cumulative error necessarily fails.”).
AFFIRMED.
11
United States v. Tracey Brown
Combined Opinion