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NOT FOR PUBLICATION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. 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.

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