                                                                           FILED
                              NOT FOR PUBLICATION                           JUL 21 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               )     No. 13-10192
                                        )
                                        )     D.C. No. 3:12-cr-08142-NVW-1
      Plaintiff - Appellee,             )
                                        )     MEMORANDUM*
      v.                                )
                                        )
IBRAHIM FAHAB BARE,                     )
                                        )
      Defendant - Appellant.            )
                                        )

                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                               Submitted July 7, 2014**
                               San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Ibrahim Fahab Bare appeals his conviction and sentence for the crimes of

felon in possession of firearms and ammunition. See 18 U.S.C. §§ 922(g)(1),


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
924(a)(2). We affirm his conviction, vacate his sentence, and remand for

resentencing.

      (1)      Bare first asserts that the district court erred when it refused to instruct

the jury on his proposed defense of justification of firearm and ammunition

possession. We disagree. Bare was not entitled to an instruction on justification

unless he proffered sufficient evidence “to establish a justification defense.”

United States v. Phillips, 149 F.3d 1026, 1030 (9th Cir. 1998); see also United

States v. Gomez, 92 F.3d 770, 775 (9th Cir. 1996); United States v. Lemon, 824

F.2d 763, 765 (9th Cir. 1987). He did not. Our careful review of the record

demonstrates that he failed to present sufficient evidence to establish that he was

under a present or imminent threat of serious harm to himself or his family,1 or that

he did not recklessly place himself in danger,2 or that there were no legal

alternatives to his arming himself and firing,3 or that his action in arming himself




      1
       See United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008);
United States v. Becerra, 992 F.2d 960, 964 (9th Cir. 1993); see also Lemon, 824
F.2d at 765.
      2
          See United States v. Nolan, 700 F.2d 479, 484–85 (9th Cir. 1983).
      3
     See United States v. Wofford, 122 F.3d 787, 791 (9th Cir. 1997); see also
Lemon, 824 F.2d at 765.

                                             2
was actually directly connected to a threat.4 In short, it is difficult to meet the

justification standard in a felon in possession case,5 and Bare failed to do so here.

      (2)      Bare then contends that when the district court precluded evidence of

his justification defense, it violated his right to present a complete defense,6 but we

disagree with that contention also. His proffer to the district court was not

sufficient to present a prima facie case for justification, so evidence thereof was

irrelevant and was properly excluded at trial. See Vasquez-Landaver, 527 F.3d at

802; United States v. Moreno, 102 F.3d 994, 998 (9th Cir. 1996); United States v.

Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984); see also Wood v. Alaska, 957

F.2d 1544, 1549 (9th Cir. 1992); United States v. Perkins, 937 F.2d 1397, 1401

(9th Cir. 1991). Moreover, Bare was able to present a complete narrative of the

events leading up to his arming himself with and firing a gun. That allowed in all

or virtually all of the evidence covered in his proffer. The district court did not err.

See United States v. Cortes, __ F.3d __, No. 12-50137, 2014 WL 998403, at *4

(9th Cir. Mar. 17, 2014); United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir.



      4
          See Wofford, 122 F.3d at 792; see also Lemon, 824 F.2d at 765.
      5
          Nolan, 700 F.2d at 484.
      6
       See Crane v. Kentucky, 476 U.S. 683, 689–90, 106 S. Ct. 2142, 2146–47,
90 L. Ed. 2d 636 (1986); Moses v. Payne, 555 F.3d 742, 756–57 (9th Cir. 2009).

                                            3
2012).

      (3)      Bare, finally, asserts that the district court plainly erred when it

calculated his guideline range on the basis that he had previously committed a

crime of violence. See USSG §2K2.1(a)(3). We agree. See United States v.

Flores-Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013). That error elevated his base

offense level by two points. Compare USSG §2K2.1(a)(3), with USSG

§2K2.1(a)(4)(B). We recognize that the error was not plain at the time Bare was

sentenced,7 but whether we deem the law settled against him at that time or (due to

intervening case law) unsettled, we apply the plain error standard.8 Moreover, this

record demonstrates that there is “a reasonable probability that [he] would have

received a different sentence if the district court had not erred.” United States v.

Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011) (internal quotation marks omitted); see

also United States v. Vargem, 747 F.3d 724, 728 (9th Cir. 2014). Bare has

satisfied his burden. See United States v. Joseph, 716 F.3d 1273, 1280 n.9 (9th

Cir. 2013); cf. United States v. Leal-Vega, 680 F.3d 1160, 1169–70 (9th Cir.

2012), cert. denied, __ U.S. __, 133 S. Ct. 982, 184 L. Ed. 2d 765 (2013).



      7
          See Flores-Cordero, 723 F.3d at 1088.
      8
       See Henderson v. United States, __ U.S. __, __, 133 S. Ct. 1121, 1125,
1130–31, 185 L. Ed. 2d 85 (2013); Johnson v. United States, 520 U.S. 461, 468,
117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997).

                                             4
      The district court was concerned about Bare’s violent past, and our

determination that, as a matter of law, he had not been convicted of a crime of

violence might well affect the district court’s sentencing decision. Furthermore,

the district court did not consider the possibility of a lower guideline range

calculation. See United States v. Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir.

2011) (per curiam); cf. United States v. Bonilla-Guizar, 729 F.3d 1179, 1189 (9th

Cir. 2013). Finally, if the error did result in a higher sentence, that would

“seriously affect[ ] the fairness, integrity or public reputation” of this judicial

proceeding. Tapia, 665 F.3d at 1061.

      We, therefore, vacate Bare’s sentence and remand for resentencing on an

open record. See United States v. Gunning, 401 F.3d 1145, 1148 (9th Cir. 2005);

United States v. Matthews, 278 F.3d 880, 885–86, 889 (9th Cir. 2002) (en banc).

      Conviction AFFIRMED; sentence VACATED; REMANDED for

resentencing.




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