FILED
NOT FOR PUBLICATION
DEC 22 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10277
Plaintiff-Appellee, D.C. No.
3:11-cr-00142-HDM-CBC-1
v.
CLIFTON JAMES JACKSON, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-10278
Plaintiff-Appellee,
D.C. No.
v. 3:18-cr-00105-HDM-WGC-1
CLIFTON JAMES JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted December 8, 2020
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: LUCERO,** W. FLETCHER, and IKUTA, Circuit Judges.
Defendant Clifton Jackson appeals his conviction and sentence for unlawful
possession of a firearm, 18 U.S.C. § 922(g)(1). We have jurisdiction under 28
U.S.C. § 1291 and affirm.
1. Rehaif v. United States, 139 S. Ct. 2191 (2019), did not require the district
court to vacate Defendant’s unlawful firearm possession conviction. First, the
indictment’s omission of the element that defendant “knew he belonged to the
relevant category of persons barred from possessing a firearm” in violation of 18
U.S.C. § 922(g)(1), did not deprive the district court of jurisdiction. See United
States v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in an indictment do not
deprive a court of its power to adjudicate a case.”).
**
The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
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Second, Defendant’s Rehaif challenge to the indictment and jury instructions
fails plain error review.1 As this court noted in United States v. King, “Johnson
resolves this case.” 979 F.3d 1218, 1220 (9th Cir. 2020). Pursuant to United
States v. Johnson, 979 F.3d 632 (9th Cir. 2020), the panel may review the entire
record on appeal. The inquiry is “if the defendants’ convictions were reversed and
the prosecution or trial had to start over, [would] the outcome potentially be any
different [?]” Johnson, 979 F.3d at 638. Defendant cannot show that a non-
defective indictment/instruction would have produced a different result. The
record on appeal contains evidence that the government could have introduced to
prove that Defendant knew of his status as a convicted felon. As in Johnson and
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Defendant argues the defective indictment constitutes structural error as it
presents constitutional issues. We disagree. See Neder v. United States, 527 U.S.
1, 8 (1999) (noting that most “constitutional errors are harmless” and that errors
are structural, and thus subject to automatic reversal, in a “very limited class of
cases” (citation omitted)). Because the errors of which Defendant complains are
errors “in the trial process itself” and not “defect[s] affecting the framework within
which the trial proceeds,” this is not one of the “rare situations” that mandates a
presumption of prejudice. Id. at 9, 13 (citation omitted).
We also reject Defendant’s argument, raised for the first time during oral
argument, that Defendant preserved his Rehaif insufficiency challenge (and thus
that we should review that issue de novo) by bringing a general Rule 29 motion
below, even though that motion was not based on Rehaif or the knowledge-of-
status issue he now raises. King, 979 F.3d at 1219 (“[P]lain-error review applies
when the defendant fails to challenge the district court’s omission of the
knowledge-of-status element now required under Rehaif.” (quotation marks and
citation omitted)).
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King, Defendant’s uncontroverted presentence report shows that at the time he
possessed the firearm, he had already sustained four other felony convictions, one
of which was a prior felon in possession charge. Defendant thus cannot plausibly
argue that a jury would find he was unaware of his status.
2. Defendant was not deprived of his statutory or constitutional rights to a
speedy trial. The Speedy Trial Act requires that a criminal trial commence within
seventy days of a defendant’s initial appearance or indictment. 18 U.S.C.
§ 3161(c)(1). Certain types of delays are excludable from the calculation. Id.
§ 3161(h). A judge may issue a speedy trial continuance, but no such continuance
may be granted for “lack of diligent preparation or failure to obtain available
witnesses on the part of the attorney for the Government.” Id. § 3161(h)(7)(C).
Defendant failed to show that the continuance was due to the government’s lack of
diligent preparation. To the contrary, the record shows that the government was
“working extensively” to avoid a discovery delay, but encountered unavoidable
bureaucratic hurdles outside of its control.
Defendant also has a “fundamental” right to a speedy trial under the Sixth
Amendment. Klopfer v. State of N.C., 386 U.S. 213, 223 (1967). The Supreme
Court has established a four-part test to evaluate claims under the Sixth
Amendment. Barker v. Wingo, 407 U.S. 514, 533 (1972). Here, the first Barker
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factor, the length of the delay, is dispositive. Defendant’s trial was delayed four-
months. This is too short a delay to trigger a Sixth Amendment violation. See
United States v. Turner, 926 F.2d 883, 889 (9th Cir. 1991).
3. The district court acted within its discretion when it allowed witnesses to
testify about hearing shots fired. The evidence was relevant because it tended to
prove that Defendant possessed a gun in violation of 18 U.S.C. § 922(g)(1).
Likewise, the evidence was not unfairly prejudicial as its probative value was not
substantially outweighed by the danger of unfair prejudice. Cf. United States v.
Espinoza-Baza, 647 F.3d 1182, 1190 (9th Cir. 2011) (finding evidence unfairly
prejudicial because the record did not contain necessary additional facts). Further,
the evidence was not prohibited bad-act evidence. The evidence was related to the
crime charged and part of the chain of events that led to Defendant’s arrest and
conviction. See United States v. Daly, 974 F.2d 1215, 1216 (9th Cir. 1992).
Finally, admission of the evidence did not violate Defendant’s Sixth Amendment
confrontation rights. Defendant demonstrated through cross examination that the
shots-fired evidence was inconsistent with other evidence in the case, and he was
able to impeach the relevant witnesses.
4. The district court acted within its discretion by refraining from giving an
Allen charge or declaring a mistrial. While the jury appeared deadlocked, there is
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no per se requirement that a judge give an Allen instruction to a deadlocked jury.
More important, there is no showing that the instructions the judge gave to the
deadlocked jury were unduly coercive. See United States v. Hernandez-Guardado,
228 F.3d 1017, 1029 (9th Cir. 2000).
5. Sufficient evidence supports the felon-in-possession charge and the
revocation of supervised release. First, the evidence at trial supported the jury’s
verdict that Defendant knowingly possessed the firearm—an eyewitness saw
Defendant carrying a gun, heard shots fired, and then called 911. Second, the
district court properly found that Defendant violated supervision by committing a
new (and second) federal offense.
6. Because the district court did not err (or any errors were harmless), there
was no cumulative error. See United States v. Fernandez, 388 F.3d 1199, 1256–57
(9th Cir. 2004).
7. The district court correctly increased Defendant’s offense level under the
Sentencing Guidelines. Defendant argues that Rehaif applies to the mens rea
required for U.S.S.G. § 2K2.1(b)(4)’s stolen firearm enhancement. We recently
reaffirmed the validity of U.S.S.G. § 2K2.1(b)(4) and held that it does not contain a
scienter requirement. See United States v. Prien-Pinto, 917 F.3d 1155, 1156–61
(9th Cir. 2019). Rehaif does not affect Prien-Pinto’s holding.
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8. The district court acted within its discretion when it imposed a supervised
release risk notification condition. This court has already affirmed the use of the
challenged condition. See United States v. Evans, 883 F.3d 1154, 1164 (9th Cir.
2018) (finding the condition constitutional); United States v. Oseguera, 793 F.
App’x 579, 581 (9th Cir. 2020).
9. We remand for resentencing on the supervised release revocation. The
Probation Officer mistakenly based the revocation range on a Criminal History
Category IV and recommended a 12–18 month range. This mistake went
unnoticed, and the district court adopted the guideline range and imposed an 18-
month high-end consecutive sentence. The correctly calculated range should have
been 8–14 months. Both parties agree that this court should remand for
resentencing on the supervised release revocation. See Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1903 (2018).
We therefore affirm Defendant’s conviction, vacate the supervised release
violation sentence, and order a limited remand to allow the district court to
resentence Defendant for the supervised release violation.
AFFIRMED in part, VACATED in part, and REMANDED.
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