                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 31 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10222

              Plaintiff-Appellee,                D.C. No. 3:13-cr-00591-VC-1

 v.
                                                 MEMORANDUM*
NATHAN CHARLTON,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Vince G. Chhabria, District Judge, Presiding

                      Argued and Submitted August 10, 2016
                            San Francisco, California

Before: GRABER and McKEOWN, Circuit Judges, and PETERSON,** District
Judge.

      Nathan Charlton appeals his conviction and sentence for being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The offense required

the government to establish that the firearm had been shipped or transported in

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The Honorable Rosanna Malouf Peterson, United States District Judge
for the Eastern District of Washington, sitting by designation.
interstate commerce. Id. § 922(e). Charlton first challenges the admission of an

investigation report prepared by the government’s expert witness, Special Agent

Daniel Garza with the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”), as a business record. Even assuming the admission of the report was in

error, any error was harmless because the report was cumulative of Garza’s

testimony. See United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004) (“Even

if we find error, we will only reverse if an erroneous evidentiary ruling more likely

than not affected the verdict.” (internal quotation marks omitted)).

      Based on his expertise in firearms and his research, including consultation of

an ATF file on manufacturer information and with an archivist from Colt, the

manufacturer of the firearm, Garza testified that the firearm had been manufactured

in Connecticut. The district court appropriately exercised its gatekeeping function

with respect to the admissibility of this testimony. See Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 148 (1999) (“Federal Rules [of Evidence] 702 and 703

grant expert witnesses testimonial latitude unavailable to other witnesses on the

assumption that the expert’s opinion will have a reliable basis in the knowledge

and experience of his discipline.” (internal quotation marks omitted)). We have

previously affirmed admission of similar testimony regarding the location of

manufacture and, in light of the scope of Garza’s testimony, the district court did


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not abuse its discretion in admitting the testimony under Rules 702 and 703.

United States v. Dunn, 946 F.2d 615, 618 (9th Cir. 1991); United States v. Gann,

732 F.2d 714, 724–25 (9th Cir. 1984). Although Charlton claims that Garza’s

testimony was a conduit for testimonial hearsay in violation of Crawford v.

Washington, 541 U.S. 36 (2004), we settled that issue in United States v. Vera:

“[T]he key question for determining whether an expert has complied with

Crawford is . . .whether the expert has developed his opinion by applying his

extensive experience and a reliable methodology.” 770 F.3d 1232, 1237–38 (9th

Cir. 2014) (internal quotation marks omitted). Not only was the archivist’s

statement not testimonial, Garza met the criteria of experience and a reliable

methodology.

      Because Charlton did not object at trial, we review for plain error his claim

that the court should have given a limiting instruction on the expert testimony.

United States v. Sauza-Martinez, 217 F.3d 754, 759 (9th Cir. 2000). In view of our

holding with respect to admission of the testimony, there was no error, let alone

plain error, in declining to give a limiting instruction with respect to Garza’s

testimony.

      With respect to sentencing, Charlton and the government agree that the

district court erred in calculating the Guideline range. However, any error was


                                           3
harmless and resentencing is not warranted because the district court was crystal

clear that the resulting sentence would have been the same, despite any

disagreement regarding the range. The court stated: “And, by the way, we have a

disagreement about how to calculate the guideline range, but I don’t think it

matters in this case because I think that the defendant’s proposed guideline range

based on the defendant’s calculations was . . .100 months to 125 months. And

even if that were the correct guideline calculation, I would sentence at the highest

end of that range that I would be allowed to sentence, which would be 120

months.” See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 & n. 5 (9th

Cir. 2011) (explaining that, if the sentence would be the same, the error is harmless

and remand is unnecessary).

      AFFIRMED.




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