                                                                            FILED
                           NOT FOR PUBLICATION                               SEP 15 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10075

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00240-RLH-RJJ-
                                                 1
  v.

BRIAN FIERRO,                                    MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding

                          Submitted September 13, 2011 **
                             San Francisco, California

Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.***



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

       ***   The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
      Brian Fierro appeals his jury trial conviction of one count of interference

with commerce by robbery (18 U.S.C. § 1951), one count of discharging a firearm

during a crime of violence (18 U.S.C. § 924(c)), and two counts of being a felon in

possession of a firearm (18 U.S.C. § 922(g)). We affirm in part and vacate and

remand in part. Because the parties are familiar with the history of the case, we

need not recount it here.

                                           I

      The district court did not plainly err by admitting the evidence Fierro

challenges on appeal. The district court did not plainly err when it admitted the

evidence that Fierro now challenges under Fed. R. Evid. 403. District judges are

not obligated to exclude evidence under Rule 403 sua sponte. See Wright &

Graham, Federal Practice & Procedure § 5224 (1978). Nor are they required to

explicitly describe their balancing determinations on the record when a 403

objection is raised. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1090-91

(9th Cir. 2000). The evidence that Fierro now challenges was mentioned only

briefly at trial, was “not an integral part of the government’s case,” and thus its

admission did not reach the level of plain error. See United States v. Gomez-

Gallardo, 915 F.2d 553, 557 (9th Cir. 1990).




                                          -2-
      The district court did not plainly err when it admitted the evidence that

Fierro now challenges under Fed. R. Evid. 404(b). Rule 404(b) is a “rule of

inclusion” and “[u]nless the evidence of other crimes tends only to prove

propensity, it is admissible.” United States v. Rrapi, 175 F.3d 742, 748 (9th Cir.

1999) (internal quotation marks and citation omitted). The government did not

introduce or use the challenged evidence to prove propensity. Fierro’s argument

that the district court should have applied a four-part test before admitting evidence

under Rule 404(b) is unpersuasive because it presumes that the defendant timely

objected, which Fierro did not.

                                          II

      The government introduced sufficient evidence of a nexus to interstate

commerce required to prove Hobbs Act robbery under 18 U.S.C. § 1951. To

establish the interstate commerce element of a Hobbs Act charge, “the government

need only establish that a defendant’s acts had a de minimis effect on interstate

commerce.” United States v. Lynch, 437 F.3d 902, 908 (9th Cir. 2006) (en banc).

The interstate nexus is satisfied by “proof of a probable or potential impact on

interstate commerce.” Id. at 909 (internal quotation marks omitted). This standard

is quite low, as “[t]he government need not show that a defendant’s acts actually

affected interstate commerce.” Id. We have “consistently upheld convictions


                                         -3-
under the Hobbs Act even where the connection to interstate commerce was

slight.” Id. (internal quotation marks and citation omitted).

      Fierro agrees that the business he robbed, the Lucky Nickel Saloon, was

engaged in interstate commerce. However, he argues that the government failed to

present evidence that the robbery had even a de minimis effect on interstate

commerce. The record, however, indicates that the government introduced

sufficient evidence that could permit a jury to find that the robbery had a de

minimis impact on interstate commerce. Immediately following the robbery and

shooting, the Lucky Nickel temporarily closed so that officers could cordon off and

secure the scene to preserve it for investigation. They then interviewed witnesses

and examined the area with the crime scene analyst. The analyst photographed the

scene and collected evidence, even cutting open the wall to retrieve the bullet

embedded within. This is enough evidence of at least a de minimis interference

with interstate commerce. See United States v. Boyd, 480 F.3d 1178, 1179 (9th

Cir. 2007) (affirming a Hobbs Act conviction premised on a robbery that forced

the temporary closure of a business engaging in interstate transfers of money).

                                          III

      The government concedes that the district court committed plain error by

failing to dismiss a multiplicitous § 922(g) count for possession of the same


                                         -4-
firearm. Fierro was convicted of two counts of 18 U.S.C. § 922(g), each for

possession of the same .357 revolver. Fierro argues, and the government agrees,

that only one conviction is appropriate because his possession was one,

uninterrupted course of conduct. See United States v. Horodner, 993 F.2d 191,

192-93 (9th Cir. 1993) (holding that a defendant’s double jeopardy rights were

violated by his convictions on two § 922(g) counts where his gun “possession was

one uninterrupted course of conduct.”). Moreover, in order to support separate

§ 922(g) offenses, the separateness of acquisition or possession of a firearm must

be found by a jury. See United States v. Ankeny, 502 F.3d 829, 838 (9th Cir.

2007). Thus, we must vacate and remand to allow the district court to amend the

judgment to omit one of Fierro’s multiplicitous § 922(g) convictions.




      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




                                         -5-
