NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 28 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10171
Plaintiff-Appellee, D.C. No.
2:15-cr-00094-LDG-VCF-1
v.
DEANDRE SPENCER COTTON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted October 9, 2018
Withdrawn from Submission October 18, 2018
Resubmitted September 28, 2020
San Francisco, California
Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.
Deandre Cotton appeals the denial of a continuance and a motion to
suppress, as well as his convictions and sentence for being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) and possession to distribute
marijuana in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm Cotton’s convictions and sentence.
1. The district court did not abuse its discretion in denying Cotton’s motion
to continue the suppression hearing to secure additional witnesses. An additional
continuance would have resulted in inconvenience to the government and the
court. Cotton also cannot establish prejudice because defense counsel indicated
that he was ready to proceed at the beginning of the hearing, when none of his
witnesses were present. Cf. United States v. Flynt, 756 F.2d 1352, 1358-61 (9th
Cir. 1985) (finding the denial of a continuance prejudicial because the district court
had “repeatedly thwarted” defense counsel’s efforts).
2. Under de novo review, the district court did not err in denying Cotton’s
motion to suppress. See United States v. Torres, 828 F.3d 1113, 1118 (9th Cir.
2016). The smell of marijuana emanating from the car provided probable cause to
conduct a warrantless search. See, e.g., United States v. Guzman-Padilla, 573 F.3d
865, 886 n.5 (9th Cir. 2009).
3. At trial, the jury did not plainly err in finding that Cotton, the driver and
likely owner of the car and backpack, constructively possessed the marijuana as
well as the firearm. The district court properly allowed testimony from Officer
Ruzicka, Officer Guillen, and Agent Nestor regarding the packaging of marijuana,
as the testimony did not opine on Cotton’s mental state. Officers Ruzicka and
Guillen gave proper lay opinion testimony that the packaging of the marijuana was
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consistent with distribution and sales. The jury did not plainly err in finding that,
based on the packaging of the marijuana, Cotton had the intent to distribute. Any
possible error in allowing the prosecutor’s comments in the opening statement and
closing argument was harmless. For the reasons discussed above, we do not find
any cumulative error at trial.
4. On appeal, Cotton challenges whether each of his three prior convictions
qualifies as a crime of violence or a controlled substance offense under United
States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2. The government waived any
challenges to Nevada Revised Statutes (“NRS”) § 453.316 due to failure to brief
the issue fully. See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015)
(en banc).
Under de novo review, we nonetheless conclude that both remaining
offenses—NRS § 200.481 and NRS § 453.337—qualify as predicate U.S.S.G. §
4B1.2 offenses. See LaChance v. State, 321 P.3d 919, 925 (Nev. 2014) (explaining
that NRS § 200.481’s “prolonged physical pain” element “must necessarily
encompass some physical suffering or injury that lasts longer than the pain
immediately resulting from the wrongful act” (citations omitted)); Figueroa-
Beltran v. United States, 467 P.3d 615, 624 (Nev. 2020) (holding that “the identity
of a substance is an element that must be proven to sustain a conviction under NRS
453.337”). The remaining convictions thus support a U.S.S.G. § 2K2.1(a)(2)
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enhancement.
5. After the hearing, we granted Cotton’s unopposed motion for
supplemental briefing to address the impact of Rehaif v. United States, 139 S. Ct.
2191 (2019). In Rehaif, the Supreme Court held that a person prosecuted under 18
U.S.C. § 922(g) must know, at the time of the alleged firearm possession, of his
status as a person barred from possessing a firearm. Id. at 2194. In Cotton’s case, a
jury would have to find beyond a reasonable doubt that he knew, at the time of his
arrest, that he had been convicted of “a crime punishable by imprisonment for a
term exceeding one year.” 18 U.S.C. § 922(g)(1).
We review Cotton’s challenge to the indictment, the sufficiency of the
evidence, and the jury instructions for plain error. United States v. Benamor, 937
F.3d 1182, 1188 (9th Cir. 2019); United States v. Conti, 804 F.3d 977, 981 (9th
Cir. 2015); United States v. Velasco-Medina, 305 F.3d 839, 847 (9th Cir. 2002).
Reviewing for plain error, we find there was (1) “error” that was (2) “plain.” See
Benamor, 937 F.3d at 1188. The question is whether that error (3) affected
Cotton’s substantial rights, which means he must “show a reasonable probability
that, but for the error,” the outcome would have been different, and (4) “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks
and citations omitted). We conclude these prongs are not met.
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When Cotton was arrested, he had six prior felony convictions. For three of
them, Cotton was actually sentenced to at least one year of imprisonment, and
certified copies of the convictions were admitted into evidence at trial without
objection. For two of the remaining convictions, which are reflected in the
Presentence Report, Cotton was actually sentenced to at least one year of
imprisonment. Even assuming the prior convictions were insufficient to establish
Cotton’s knowledge of his status as a felon, trial testimony from Cotton’s cousin,
Joshua Norgaad, provides further support. Norgaad testified that he knew Cotton
for many years and that he was aware of Cotton’s history of incarceration, felony
status, and inability to lawfully have a gun. Taken together, Cotton has not shown
that the error affected his substantial rights or the fairness, integrity, or public
reputation of the trial.
AFFIRMED.
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