                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          OCT 20 2014

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

UNITED STATES OF AMERICA,                        No. 13-10312

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00077-JAM-1

  v.
                                                 MEMORANDUM*
BRANDON ALTON CONLEY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                            Submitted October 7, 2014**
                             San Francisco, California

Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.

       A jury convicted Appellant Brandon Conley of manufacturing at least one

hundred marijuana plants under 21 U.S.C. § 841(a)(1) and possessing a firearm in

connection with a drug trafficking crime under 18 U.S.C. § 924(c)(1). The district


        *
             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).
court sentenced Conley to two consecutive five-year terms. Conley timely

appealed.

      The district court did not err in finding that Conley was not in custody for

Miranda1 purposes when law enforcement agents questioned him in his front yard

because the brief, casual encounter did not create a “police-dominated

atmosphere.” See United States v. Craighead, 539 F.3d 1073, 1084 (9th Cir. 2008)

(listing factors relevant to whether a suspect is in custody in his home). Though

the agents held the ammunition from Conley’s handgun and told Conley to stay in

his front yard while they spoke with another suspect, these restrictions on his

freedom of movement did not rise to a de facto arrest requiring Miranda warnings.

See United States v. Woods, 720 F.2d 1022, 1029–30 (9th Cir. 1983) (holding that

brief questioning during an investigatory detention was not custodial).

      Nor did the district court abuse its discretion in declining to remove juror

number two. When defense counsel pointed out the juror’s habit of closing his

eyes, the court examined the juror on the record. Having satisfied itself that the

juror’s lapses lasted only a few seconds, the court’s conclusion that the juror had

not been sleeping was within its discretion. See United States v. Springfield, 829

F.2d 860, 864 (9th Cir. 1987) (holding that the district court did not abuse its

      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                           2
discretion in determining that a sleeping juror did not miss substantial testimony).

      The evidence, viewed in the light most favorable to the Government, was

sufficient to support Conley’s conviction of possessing a firearm in furtherance of

a drug trafficking crime. Because Conley did not challenge the sufficiency of the

evidence as to the possession element before the district court, we review only for

plain error or a miscarriage of justice. See United States v. Atkinson, 990 F.2d 501,

502–03 (9th Cir. 1993) (en banc). No miscarriage of justice resulted from the

jury’s conclusion that Conley possessed the rifle or the shotgun, or both. The jury

could infer that Conley exercised control over the weapons from his codefendant’s

testimony that Conley gave him permission to use them to protect the grow

operation. See United States v. Espinosa, 827 F.2d 604, 614 & n.6 (9th Cir. 1987)

(defining constructive possession).

      The district court did not err in finding the evidence sufficient to support the

“in furtherance” element. The testimony produced at trial showed that Armenta

used the weapons in his role of protecting the marijuana from intruders, permitting

the jury to conclude that Conley possessed the weapons in furtherance of a drug

trafficking crime. See United States v. Hector, 474 F.3d 1150, 1156 (9th Cir.

2007) (stating the elements of the offense defined in 18 U.S.C. § 924(c)(1)).

      Lastly, the district court did not plainly err in failing to instruct the jury that


                                            3
it must agree unanimously as to which specific firearm or firearms Conley

possessed. See United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012)

(reviewing instructions for plain error where the defendant did not object at trial).

Jury unanimity as to which of the two firearms Conley possessed was not required,

and the district court did not plainly err in failing to give a specific unanimity

instruction. See Richardson v. United States, 526 U.S. 813, 817 (1999) (noting that

the jury need not agree as to the means by which an element of the offense was

satisfied).

       The judgment of the district court is AFFIRMED.




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