FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10614
Plaintiff - Appellee, D.C. No. 2:09-cr-00222-HDM-
PAL-1
v.
ANTHONY SWANSON, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Submitted December 9, 2011 **
San Francisco, California
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***
*
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 William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for Northern Florida, sitting by designation.
Anthony Swanson appeals his conviction and sentence for possession of a
firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A). Because the facts are familiar to the parties, we recite them here
only as necessary to explain our decision. Although Swanson contends that the
standard of review is de novo, he did not object either to the jury instruction at
issue or to the application of the career offender enhancement. Thus, we review
both of these issues for plain error. Fed. R. Crim. P. 52(b); Johnson v. United
States, 520 U.S. 461, 466-67 (1997). We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm.
Jury Instruction 22, which erroneously conflated two separate statutory
clauses of § 924(c)(1)(A), see United States v. Thongsy, 577 F.3d 1036, 1043 (9th
Cir. 2009), did not affect Swanson’s substantial rights. The evidence that Swanson
possessed the firearm in furtherance of his drug trafficking crime was
overwhelming. Swanson admitted to the police that (1) he knew the gun was in the
house, (2) his fingerprints would probably be on it, and (3) the gun was for
protection. Swanson’s girlfriend, who also lived in the house, told police that the
gun was not hers and that Swanson brought it into the house for protection.
Finally, an expert witness testified that drug dealers often keep loaded handguns
under the bed for protection against nighttime robberies by other dealers. See
2
Thongsy, 577 F.3d at 1043 (expert’s testimony that drug dealers commonly use
guns for protection and that defendant’s pistol would not be used for hunting was
sufficient to show that the instructional error was harmless).
With respect to Swanson’s argument regarding the career offender
sentencing enhancement, see U.S.S.G. § 4B1.1, the exhibits to the government’s
motion for judicial notice, which we grant in a separate order filed concurrently
with this decision, show conclusively that Swanson was previously convicted of
two violations of Nevada Revised Statutes (NRS) section 453.337 -- possession of
certain controlled substances “for the purpose of sale.” Swanson conceded in his
sentencing memorandum that a violation of NRS section 453.337 is a “controlled
substance offense” for purposes of the career offender enhancement. Therefore,
the error in the Presentence Report, which identified one of these convictions as a
violation of NRS section 453.3385, did not affect Swanson’s substantial rights.
AFFIRMED.
3