                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 28 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50115

                Plaintiff-Appellee,             D.C. No. 5:17-cr-00159-PA-2

 v.
                                                MEMORANDUM*
DANIEL RAY, AKA Popeye, AKA Daniel
T. Ray, AKA Daniel Thomas Ray,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-50120

                Plaintiff-Appellee,             D.C. No. 5:17-cr-00159-PA-1

 v.

PATRICK JOHN BACON,

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Central District of California
             Percy Anderson, United States District Judge, Presiding.

                      Argued and Submitted January 6, 2020
                              Pasadena, California



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WATFORD and BENNETT, Circuit Judges, and RAKOFF,* District
Judge.
       Patrick Bacon and Daniel Ray were convicted of assault with a deadly

weapon with intent to do bodily harm, under 18 U.S.C. § 113(a)(3), and assault

causing serious bodily injury, under id. § 113(a)(6), via id. § 2(a) (aiding and

abetting). Defendants were sentenced to 120 months and 100 months in prison,

respectively. They appeal the convictions and sentences. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.1

      1.     Reviewing de novo, the district court properly precluded Bacon’s

duress defense. See United States v. Ibarra-Pino, 657 F.3d 1000, 1004 (9th Cir.

2011) (defendant must make a “prima facie showing of duress in a pretrial offer of

proof”). Bacon has not shown that he “had no reasonable opportunity to escape.”

United States v. Wood, 566 F.2d 1108, 1109 (9th Cir. 1977) (per curiam); see also

United States v. Houston, 648 F.3d 806, 817 (9th Cir. 2011).

      2.     Reviewing “the district court’s decision on the Rule of Completeness

for an abuse of discretion,” United States v. Vallejos, 742 F.3d 902, 905 (9th Cir.

2014), we find the district court did not abuse its discretion. First, there is no

“misleading impression,” id. (citation omitted), that the completed paragraph after




1
  In a concurrently filed opinion, we address Bacon’s argument that the district
court abused its discretion by precluding Dr. Karim, Bacon’s expert witness, from
testifying in support of Bacon’s insanity defense.
                                          2
Bacon’s statement that he was “raised to be an honest person,” would correct. Nor

can the defendant include additional portions simply because they would give

context to the jury. See id. (district court properly rejected redacted portion of

defendant’s confession that he sought to include to “show the jury the ‘flavor of

the interview,’ to ‘humanize’ [defendant], to prove his ‘character,’ and to convey

to the jury the voluntariness of his statement”). Second, defendant cannot “elicit[]

his own exculpatory statements, which were made within a broader, inculpatory

narrative.” United States v. Ortega, 203 F.3d 675, 681-82 (9th Cir. 2000). The

district court properly rejected Bacon’s request to include his statements made

prior to, and after, his statement that he said “something like ‘go in peace.’” See id.

at 682 (“[N]on-self-inculpatory statements are inadmissible even if they were made

contemporaneously with other self-inculpatory statements.”).

      3.     Turning to Ray and applying the “two-step inquiry for considering a

challenge to a conviction based on sufficiency of the evidence,” United States v.

Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc), we find there was sufficient

evidence to support his conviction for assault. Viewing the video evidence and

eyewitness testimony in the light most favorable to the prosecution, at least one

rational juror could have found that Ray aided and abetted the assault.

      4.     Ray also argues there is insufficient evidence that the government

proved the offense took place within the special maritime and territorial

                                           3
jurisdiction of the United States. Even if Ray preserved this claim, there is

sufficient evidence, such as uncontroverted testimony by the prison guards, that the

government proved this element. See United States v. Read, 918 F.3d 712, 718 (9th

Cir. 2019) (“[U]ncontradicted testimony from inmates or employees at a federal

prison can establish the jurisdictional element of 18 U.S.C. § 113.”).

      5.     Ray claims the district court improperly excluded a note allegedly

written by Bacon. Reviewing admissibility of evidence under Federal Rule of

Evidence 804(b)(3) for abuse of discretion, see United States v. Rhodes, 713 F.2d

463, 473 (9th Cir. 1983), we find the district court did not abuse its discretion.

Among other things, the note was hearsay, irrelevant, and not a statement against

interest. See United States v. Oropeza, 564 F.2d 316, 325 (9th Cir. 1977). The

district court also did not abuse its discretion in preventing Ray from cross-

examining Bacon about the properly excluded note. See United States v. Shabani,

48 F.3d 401, 403 (9th Cir. 1995) (no abuse of discretion “as long as the jury

receives sufficient information to appraise the biases and motivations of the

witness”) (citation omitted). Because this “evidentiary ruling was well within” the

district court’s discretion, there is no constitutional error. United States v. Waters,

627 F.3d 345, 353 (9th Cir. 2010).

      6.     For sentencing, “we review the district court’s identification of the

correct legal standard de novo and the district court’s factual findings for clear

                                           4
error.” United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

“[A]pplication of the Sentencing Guidelines to the facts of a given case should be

reviewed for abuse of discretion.” Id. On de novo review, the district court

correctly identified the proper legal standard for a mitigated role adjustment under

U.S.S.G. § 3B1.2(b), see United States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018)

(proper standard is to compare “defendant’s conduct . . . against that of other

participants in his or her own criminal scheme”); see Gasca-Ruiz, 852 F.3d at

1171, 1174-75 (if the district court identifies the right guideline and commentary

“we will not assume that the court applied the wrong legal standard” absent

something more). The record does not show that the district court improperly

compared Ray to a hypothetical average offender rather than an average participant

in the scheme. The district court compared Ray to the average defendant only in

the context of the facts of the case. The district court’s finding that Ray was

“indispensable” to the attack was also not legal error. The district court relied on

multiple factual findings to support its conclusion that Ray was not a minor

participant. See Diaz, 884 F.3d at 915 (defendant’s essential or indispensable role

is not outcome determinative). Lastly, the district court did not abuse its discretion

in applying the Note 3(C) factors to Ray. Ray must prove he was “substantially

less culpable than the average participant in the charged criminal activity.” Id. at




                                          5
914 (internal quotations omitted). Based on the record he has not carried that

burden. Thus, the district court did not abuse its discretion.

      7.     The district court did not abuse its discretion, see Gasca-Ruiz, 852

F.3d at 1170, in applying a two-level “more than minimal planning” increase under

U.S.S.G. § 2A2.2(b)(1). The district court properly found that this was a

coordinated assault, and the guidelines focus on the characteristics of the offense,

not the individual. See § 2A2.2(b)(1) (“[I]f the assault involved more than minimal

planning . . . .”) (emphasis added).

      8.     The parties agree that the district court plainly erred in calculating

Ray’s criminal history score. See United States v. Depue, 912 F.3d 1227, 1232 (9th

Cir. 2019) (en banc) (a finding of plain error requires error that is plain and affects

substantial rights). The district court improperly counted three of Ray’s juvenile

offense convictions. See U.S.S.G. § 4A1.2(d)(2); see also United States v. Johnson,

205 F.3d 1197, 1199-1200 (9th Cir. 2000). The district court’s plain error affected

Ray’s substantial rights because it increased the suggested sentencing guidelines

range. 2 See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345-46 (2016).

Thus, we vacate Ray’s sentence. We decline the government’s request for a limited




2
  Ray’s criminal history score resulted in his criminal history category increasing
from IV to V.
                                           6
remand and remand to the district court for resentencing on an open record. See

United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc).

      AFFIRMED in PART, VACATED and REMANDED in PART.




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