NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10049

Plaintiff-Appellee, D.C. No. 1:19-cr-00096-DAD-BAM-1 v.

NETZAHUALCOYOTL CERNA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted December 7, 2020** San Francisco, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,*** District Judge.

Netzahualcoyotl Cerna appeals from the district court’s judgment and

sentence following a jury trial. The jury convicted Cerna of using or carrying a

* 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 William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c); (2) possessing

a firearm as a convicted felon, 18 U.S.C. § 922(g)(1); and (3) possessing

methamphetamine with intent to distribute it, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A).

As the parties are familiar with the facts, we do not recount them here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Because Cerna did not object at trial to any error that he raises on appeal, all

issues here are reviewed for plain error. United States v. Johnson, 979 F.3d 632,

636 (9th Cir. 2020); United States v. Juan, 704 F.3d 1137, 1140 (9th Cir. 2013). To

establish plain error, Cerna must show that: “(1) there was an error, (2) the error is

clear or obvious, (3) the error affected his substantial rights, and (4) the error

seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” Johnson, 979 F.3d at 636.

1. Cerna argues that the district court violated Federal Rule of Evidence

704(b) by allowing Officer Joshua Sharp, an expert witness, to opine on Cerna’s

intent to distribute methamphetamine. Officer Sharp testified that Cerna possessed

121.9 grams of methamphetamine “for distribution.” Rule 704(b) prohibits an

expert witness from stating an opinion that a “[criminal] defendant did or did not

have a mental state or condition that constitutes an element of the crime charged.”

Fed. R. Evid. 704(b); United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997)

(en banc) (stating that a prohibited “opinion or inference” under Rule 704(b) is one

2 that, if accepted, necessarily compels the conclusion that the criminal defendant had

the requisite mental state for the charged crime).

Here, even assuming the district court clearly erred by allowing Officer Sharp

to testify that Cerna possessed methamphetamine “for distribution,” that error did

not affect Cerna’s substantial rights. United States v. Olano, 507 U.S. 725, 734

(1993) (explaining that an error affects substantial rights when the error is

prejudicial, that is, “affect[s] the outcome of the district court proceedings”). Ample

evidence showed that Cerna possessed 121.9 grams of methamphetamine with intent

to distribute it. Indeed, Cerna admitted that he intended to sell the 121.9 grams of

methamphetamine (worth between $600 and $700) to make money. Cerna fails to

demonstrate that, without the district court’s Rule 704(b) error, the outcome of his

trial would have been different. Cerna’s substantial rights were not affected. He

therefore fails to satisfy the plain-error standard.

2. Cerna argues that the district court erred by not sua sponte striking a

potential juror1 because she had a panic disorder. 28 U.S.C. § 1865(b)(4) provides

that a district judge “shall deem any person qualified” to serve on a jury unless that

person “is incapable, by reason of mental or physical infirmity, to render satisfactory

jury service.” Here, in response to the district judge’s questions, the potential juror

stated that medication and breathing techniques controlled the panic disorder and

1 We note that the potential juror did not serve on Cerna’s jury.

3 permitted him or her to think clearly. Nothing in the record suggests that the panic

disorder made the potential juror “incapable” of rendering “satisfactory” jury

service. 28 U.S.C. § 1865(b)(4). The district court did not err but, assuming it did,

the district court did not clearly err because the plain language of § 1865(b)(4)

supports the district court’s decision, and Cerna cites no case law requiring a

contrary result. See id. (requiring the district court to deem any potential juror

qualified unless “incapable” of rendering “satisfactory” jury service due to a mental

infirmity).

3. Cerna further argues that the district court procedurally erred because

it did not explicitly analyze the sentencing factors under 18 U.S.C. § 3553(a). The

district court must consider the § 3553(a) factors and impose a sentence “sufficient[]

but not greater than necessary” to achieve the statutory objectives of sentencing.

Rita v. United States, 551 U.S. 338, 348 (2007) (quoting 18 U.S.C. § 3553(a)). But

the “district court need not tick off each of the § 3553(a) factors to show that it has

considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en

banc). Indeed, even when a district court fails to mention “§ 3553(a),” it simply

“may be clear from the [district] court’s experience and consideration of the record

that the factors were properly taken into account.” United States v. Trujillo, 713

F.3d 1003, 1009 (9th Cir. 2013).

Here, the district court reviewed Cerna’s sentencing memorandum,

4 Presentence Investigation Report, and letters, and stated that it would give “due

weight” to § 3553(a)’s factors. The district court did not procedurally err by failing

to tick off each sentencing factor under § 3553(a). See Carty, 520 F.3d at 995–96

(holding that a district court did not procedurally err, even without mentioning

§ 3553(a), because the district judge presided over the defendant’s trial, reviewed

the Presentence Investigation Report, reviewed the parties’ submissions discussing

the § 3553(a) factors, and listened to testimony at the sentencing hearing). Cerna

fails to meet the plain-error standard.

Cerna also argues that the district court failed to adequately explain why it

rejected his two specific reasons for a downward variance: (1) Cerna’s long-term

substance abuse problem fueled his drug dealings; and (2) he could be released early

to a charitable organization that would rehabilitate him. Here, the district court

acknowledged Cerna’s substance-abuse problems and Cerna’s acceptance into a

rehabilitation program. But the district court decided not to vary downward because

Cerna’s “extensive criminal history” involved selling drugs for more than twenty

years. In sum, the district court considered Cerna’s arguments for a downward

variance, but the district court rejected them due to Cerna’s extensive criminal

history.2 The district court did not plainly err.

2 We note that the district court’s reasons for rejecting Cerna’s request for a downward variance are not similar to the district court’s “total omission” of an explanation rejecting arguments for a downward variance in United States v.

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AFFIRMED.

Trujillo, 713 F.3d at 1009–10. There, the district court did not attempt “even to dismiss [the defendant’s arguments] in shorthand.” Id. at 1010. Here, the district court acknowledged and rejected Cerna’s arguments.

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