                                NOT FOR PUBLICATION                            FILED
                         UNITED STATES COURT OF APPEALS                         JUL 7 2020
                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
                                FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                            No. 19-10075

             Plaintiff - Appellee,                    D.C. No. 4:18-cr-00133-PJH-1

   v.
                                                      MEMORANDUM*
 SHANE MAURITZ VANDERGROEN,

             Defendant - Appellant.

                       Appeal from the United States District Court
                            for the Northern District of California
                     Phyllis J. Hamilton, Chief District Judge, Presiding

                            Argued and Submitted May 13, 2020
                                 San Francisco, California

Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,** District
Judge.

        In a concurrently filed opinion in this case, we address Vandergroen’s

argument that the police lacked reasonable suspicion to stop him, and affirm the

district court’s denial of the motion to suppress with respect to that issue. We


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

        **
             The Honorable Jed S. Rakoff, Senior District Judge for the Southern
District of New York, sitting by designation.

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address here Vandergroen’s other arguments supporting reversal of his conviction,

none of which are availing.

      First, we reject Vandergroen’s argument that the police’s conduct when

stopping him rose to the level of an arrest.1 To determine whether a stop has

transformed into an arrest, we consider the totality of the circumstances, United

States v. Rousseau, 257 F.3d 925, 929 (9th Cir. 2001), including whether the police

employed “intrusive techniques,” and if so, the “reasonableness” of this conduct,

Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir. 1996). Although the police

used quite aggressive tactics over the course of their stop of Vandergroen, such

tactics were reasonable in light of the police’s reasonable suspicion that

Vandergroen was armed and Vandergroen’s lack of cooperation with commands.

Id. at 1189 & n.16 (noting that a combination of a suspect’s being armed and

uncooperative can “justify the use of aggressive police action without causing an

investigatory stop to turn into an arrest”). Thus, the police’s tactics here did not

transform the stop into an arrest.

      Second, we conclude that the frisk of Vandergroen for weapons during the

stop was permissible. “[A] frisk of a person for weapons requires reasonable

suspicion that a suspect ‘is armed and presently dangerous to the officer or to


1
 We thus do not reach the question of whether there was probable cause to arrest
Vandergroen.


                                           2
others.’” Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016) (quoting Terry v.

Ohio, 392 U.S. 1, 24 (1968)). Vandergroen argues that even if the police had

reasonable suspicion that he was “armed,” they did not have reasonable suspicion

that he was “presently dangerous.” We have held, however, that “reasonable

suspicion that [a suspect] was carrying a gun . . . is all that is required for a

protective search under Terry.” United States v. Orman, 486 F.3d 1170, 1176

(9th Cir. 2007). Thus, the search was warranted based on the 911 call providing

police with reasonable suspicion that Vandergroen was carrying a gun.

      Third, we hold that the warrantless search of Vandergroen’s car was

permissible as a protective search under Michigan v. Long, 463 U.S. 1032 (1983).

Long provides that police may search limited portions of a vehicle for weapons in

the course of a Terry stop where they have a reasonable suspicion “that the suspect

is dangerous and the suspect may gain immediate control of weapons.” Id. at 1049.

This requirement is satisfied here. The police had reasonable suspicion that

Vandergroen could gain immediate control of a gun in his car because they

reasonably believed he had a gun somewhere in his possession and had not found

one upon a frisk of his person. Although Vandergroen was handcuffed and in the

back of a police car during the car search, he would have gained immediate access

to this weapon if the police had released him after finding no open warrants and no

weapon on his person. See id. at 1051-52 (holding that the immediacy prong is


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satisfied for a suspect “effectively under [police] control” where, “if the suspect is

not placed under arrest, he will be permitted to reenter his automobile, and he will

then have access to any weapons inside”). Furthermore, the police reasonably

suspected that Vandergroen was dangerous based on his failure to cooperate and

his access to a gun.

      Fourth and finally, we reject Vandergroen’s challenge to his conviction

based on Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif clarified that an

individual must know of his felon status at the time he possessed a firearm in order

to be convicted of being a felon in possession under 18 U.S.C. § 922(g). Id. at

2194. Neither the indictment nor the trial judge’s recitation of the elements of

§ 922(g) in this case, both of which preceded Rehaif, included this knowledge of

status element. We review Vandegroen’s Rehaif-based sufficiency-of-the-evidence

claim, which was not raised below, for plain error. United States v. Johnson, No.

17-10252, 2020 WL 3458969, at *2 (9th Cir. June 25, 2020) (citing United States

v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019)). To succeed under this standard,

Vandergroen must show: (1) an error; (2) that was obvious; (3) that affected his

substantial rights; and (4) that seriously affected the fairness, integrity, or public

reputation of judicial proceedings. Id.

      The district court’s failure to include the knowledge of status element

satisfies the first two prongs of plain error review. Benamor, 937 F.3d at 1188-89.


                                            4
Even assuming this error affected Vandergroen’s substantial rights, however,

Vandergroen has failed to demonstrate prong four is met due to the “overwhelming

and uncontroverted . . . evidence” in the record as a whole that Vandergroen knew

of his status as a convicted felon. Johnson, 2020 WL 3458969, at *5. At the time

the police found the gun in Vandergroen’s car, he had already been convicted of

two felonies and sentenced to a prison term of over one year for each. Furthermore,

one of those convictions was for being a felon in possession. Taken together, this

evidence means Vandergroen cannot satisfy the fourth prong of plain error review.

See id. (“[U]ncontroverted evidence that a defendant was sentenced to more than a

year in prison . . . will ordinarily preclude a defendant from satisfying the fourth

prong of plain-error review.”); Benamor, 937 F.3d at 1189 (holding that a

defendant’s prior conviction for being a felon in possession of a firearm similarly

indicated that the fourth prong was not satisfied).

      AFFIRMED.




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