                            NOT FOR PUBLICATION
                                                                     FILED
                    UNITED STATES COURT OF APPEALS
                                                                     AUG 10 2016

                            FOR THE NINTH CIRCUIT                MOLLY C. DWYER, CLERK
                                                                   U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 15-10284

              Plaintiff-Appellee,                D.C. No. 4:14-cr-00389-WHO-2

  v.
                                                 MEMORANDUM*

ADRIAN JEMISON,

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the District of Northern California
               William Horsley Orrick, III, District Judge, Presiding

                         Argued and Submitted July 5, 2016
                             San Francisco, California

Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS, Senior
District Judge.**




        *
              This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
      Adrian Jemison was convicted of being a felon in possession of a firearm

and ammunition on November 8, 2013 in violation of 18 U.S.C. § 922(g). He was

sentenced to 41 months of incarceration, the low end of the Guidelines range

determined by the trial court. He appeals from his conviction and from his

sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Jemison asserts that the district court erred in two evidentiary rulings. We

review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. See United States v. Santini, 656 F.3d 1075, 1077 (9th Cir. 2011) (per

curiam).

      The undercover officer testified that he recognized Jemison at trial saying “I

purchased a firearm from him on November 8th. And he’s seated in the Court

today.” Jemison contends that this was a statement of opinion that should have

been stricken as an inadmissable opinion pursuant to Fed. R. Evid. 701. However,

the testimony is no more than a purported first-hand account of what the witness

claimed he did and saw, based on his own knowledge and perception. This is not

opinion testimony, and there was no error in the court’s declining to strike it. Even

if it were an error, it would not require reversal because it is more likely than not

that it “did not materially affect the verdict.” United States v. Gonzalez-Flores,


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418 F.3d 1093, 1099 (9th Cir. 2005) (quoting United States v. Morales, 108 F.3d

1031, 1040 (9th Cir. 1997) (en banc)).

      The trial court admitted testimony of Jemison’s presence at an October 31,

2013 transaction at which the undercover officer purchased a box with unidentified

contents from the person who participated with Jemison in the November 8, 2013

transaction. This testimony was appropriately limited and did not disclose that the

item sold was a firearm. The court’s allowance of the testimony was not an abuse

of discretion. Even if there were error, any error would have been harmless.

      In the prosecutor’s final argument, she stated:

                    Now, I also want to point out that the Jury
             Instructions say you do not need to agree on the type of
             possession. You do not need to agree on whether he
             possessed the shells or the shotgun. You must simply
             agree that he possessed one of the two prohibited items.
             You have to agree, yes, he possessed either the shotgun
             or the shells, but it doesn’t matter which.

Appellant’s R. 40.

      Although Jemison’s counsel did not raise an objection at trial, Jemison

contends that the district court erred because it did not sua sponte provide a

specific unanimity instruction to counteract potential jury confusion caused by the

statement.


                                          3
      We review the district court’s decision for an abuse of discretion, see United

States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001), and for plain error, United States

v. Brown, 327 F.3d 867, 871 (9th Cir. 2003) (citations omitted).

      “Normally, a general instruction on the requirement of unanimity suffices to

instruct the jury that they must be unanimous on whatever specifications form the

basis of the guilty verdict.” United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir.

2015) (quoting United States v. Payseno, 782 F.2d 832, 835 (9th Cir. 1986)). If,

however, “there is a genuine possibility of jury confusion or a possibility that a

conviction may occur as the result of different jurors concluding that the defendant

committed different acts,” then a specific unanimity instruction is required. Id.

      Jemison was charged with a single offense – being a felon in possession of a

firearm or ammunition, in violation of 18 U.S.C. § 922(g)(1) – on a single date.

The district court did not err by failing to provide a specific unanimity instruction

as to which specific object constituted the item possessed. “[T]he jurors were free

to convict on whichever evidence they believed supported [the defendant’s] guilt

beyond a reasonable doubt, even if they failed to reach agreement on which pieces

of evidence were ultimately persuasive.” United States v. Ruiz, 710 F.3d 1077,

1081 (9th Cir. 2013) (citing Schad v. Arizona, 501 U.S. 624, 631-32 (1991)).


                                           4
      Finally, Jemison asserts that the district court erred when it applied a four-

level upward adjustment at sentencing for being engaged in the trafficking of

firearms. We give “significant deference” to a district court’s sentencing decision,

reviewing for abuse of discretion. United States v. Ressam, 679 F.3d 1069, 1086

(9th Cir. 2012) (en banc), as amended. “[O]nly a procedurally erroneous or

substantively unreasonable sentence will be set aside.” United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc).

      Jemison, aware that the district court had before it hearsay statements

establishing his participating in more than one firearm sale, declined the offer of an

evidentiary hearing. The district court considered the evidence under the proper

standard, ruled on all the objections, considered the relevant sentencing factors

under 18 U.S.C. § 3553(a), heard arguments of counsel, properly calculated the

Guidelines, and articulated the court’s reasoning before sentencing. The finding

that Jemison engaged in trafficking was not “illogical, implausible, or without

support in inferences that may be drawn from the facts in the record.” See United

States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). Accordingly, the

district court did not err in applying the four-level upward adjustment at issue.

     AFFIRMED.


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