United States v. Anthony Swanson

MEMORANDUM

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 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (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…