NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 14 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30049

Plaintiff-Appellee, D.C. No. 3:17-cr-05314-BHS-1 v.

BRENT LUYSTER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted May 7, 2020** Seattle, Washington

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and CHHABRIA,*** District Judge.

Brent Luyster appeals from a jury verdict convicting him of being a felon in

possession of a firearm and of being a felon in possession of ammunition, both in

* 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 Vince Chhabria, United States District Judge for the Northern District of California, sitting by designation. violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. The district court properly denied Luyster’s motion to suppress the

firearms and ammunition discovered during the officers’ search of his residence

and the abutting hillside. Even if we assume that the hillside is part of the curtilage

of Luyster’s home, the officers reasonably performed a “protective sweep”—that

is, “a cursory inspection of those spaces where a person may be found.” Maryland

v. Buie, 494 U.S. 325, 335 (1990). The officers had lawful authority to enter

Luyster’s property to respond to the 911 call and the gunshots. Cf. Sialoi v. City of

San Diego, 823 F.3d 1223, 1237 (9th Cir. 2016) (explaining that officers’ presence

must be lawful in order to conduct a valid Buie sweep). And upon his arrest on the

hillside, Luyster told officers that a militia member was armed with an assault rifle

in their general vicinity. That statement undoubtedly “would warrant a reasonably

prudent officer in believing that the area to be swept harbors an individual posing a

danger to those on the arrest scene,” a concern that extended to the interior of

Luyster’s house. Buie, 494 U.S. at 334; see United States v. Paopao, 469 F.3d 760,

766 (9th Cir. 2006). Given their authority to perform this sweep, the officers were

also authorized to seize incriminating firearms and ammunition in “plain view.”

See United States v. Lemus, 582 F.3d 958, 964 (9th Cir. 2009).

2. The district court did not commit reversible error by admitting evidence

2 that Luyster pistol-whipped the mother of his child prior to being found in

possession of firearms and ammunition. This evidence was neither irrelevant nor

impermissible bad-acts evidence because the assault was “inextricably

intertwined” with the possession offenses. United States v. Vizcarra-Martinez, 66

F.3d 1006, 1012 (9th Cir. 1995); see Fed. R. Evid. 401, 404(b). The assault not

only immediately preceded Luyster’s possession of firearms and ammunition as a

temporal matter but also kickstarted a sequence of events that culminated in an

armed standoff between Luyster and the officers who responded to the 911 call.

Luyster argues that even if the jury should have been permitted to learn of

the assault, the district court unduly prejudiced his defense by admitting extensive

evidence regarding the physical harm to and emotional state of the victim. See Fed.

R. Evid. 403. But even assuming that the district court abused its discretion in this

regard, the error did not materially affect the verdict. See United States v.

Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005). The evidence of Luyster’s

guilt on both counts was overwhelming: He fired a gun during the standoff; the

arresting officers discovered ammunition in his pants pocket; and a trained canine

tracked his scent to a nearby cache of firearms on the hillside. The harmlessness of

the putative error is further reinforced by the district court’s limiting instruction

addressing the proper uses of the assault evidence. See United States v. Berry, 627

F.2d 193, 198 (9th Cir. 1980).

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AFFIRMED.

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