                                                                              FILED
                           NOT FOR PUBLICATION                                APR 22 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10508

              Plaintiff - Appellee,              D.C. No. 4:12-cr-02296-DCB-
                                                 CRP-1
  v.

MARIO OSORIO-COLA,                               MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                      Argued and submitted March 11, 2015
                           San Francisco, California

Before: CALLAHAN, M. SMITH, and WATFORD, Circuit Judges.

       Defendant-Appellant Mario Osorio-Cola (“Osorio-Cola”) appeals his

conviction and sentence for assault on a federal officer under 18 U.S.C. § 111.

Because the parties are familiar with the facts and procedural history, we do not




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
restate them except as necessary to explain our decision. We have jurisdiction

under 28 U.S.C § 1291, and we affirm.

      1.     Where, as here, the defendant does not object at trial, we review for

plain error the district court’s failure to exclude the prosecution’s reference to a

defendant’s silence. United States v. Lopez-Martinez, 543 F.3d 509, 516 (9th Cir.

2008). A defendant’s right to maintain his post-arrest, post-Miranda silence under

Doyle v. Ohio, 426 U.S. 610 (1976), is triggered by “(1) a defendant’s invocation

of his right to remain silent and (2) an omission in post-Miranda statements

arguably inconsistent with his trial testimony.” United States v. Ramirez-Estrada,

749 F.3d 1129, 1134 (9th Cir. 2014) (citation omitted). Even if Osorio-Cola did

invoke his right to remain silent, and it is not clear on this record that he did, any

resulting Doyle error did not amount to plain error. Osorio-Cola was able to testify

as to his version of the event, which did not turn on the credibility of his claim that

Agent McNeil struck him in the head. It instead turned on the credibility of

Osorio-Cola’s claim that he himself had never used force in the encounter. The

jury then credited his testimony at least in part and discounted the testimony of the

government witnesses when it acquitted him on all three counts of the indictment

and convicted him only of a lesser-included offense. On this record, Osorio-Cola

has not met his burden of showing that the alleged Doyle violation “materially


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affected the verdict.” United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.

1989).

      2.     We review for abuse of discretion the denial of a defendant’s

requested jury instruction due to an inadequate factual basis. United States v.

Daane, 475 F.3d 1114, 1119 (9th Cir. 2007). Where a party does not object at

trial, we review the district court’s formulation of the jury instruction for plain

error. United States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006).

      In light of Osorio-Cola’s own testimony that he did not use any force against

the federal agent and did not fight back, even to protect himself, the district court

did not abuse its discretion in determining that there was no factual basis for a self-

defense instruction, much less plainly err. The district court did not plainly err in

instructing the jury that officers acting in the good faith performance of their duties

may not be forcibly resisted because we approved a virtually identical instruction

in United States v. Span, 970 F.2d 573, 580–81 (9th Cir. 1992).

      3.     A lesser-included offense instruction may be given to the jury if 1)

“the elements of the lesser offense are a subset of the elements of the charged

offense” and 2) “the evidence would permit a jury rationally to find [Osorio-Cola]

guilty of the lesser offense and acquit [him] of the greater.” United States v.

Rivera-Alonzo, 584 F.3d 829, 832 (9th Cir. 2009) (citations omitted). We review


                                           3
the district court’s determination on the first step de novo and its determination on

the second step for abuse of discretion. United States v. Arnt, 474 F.3d 1159, 1163

(9th Cir. 2007) (citations omitted).

      To prove assault under 18 U.S.C. § 111(b), the government must show that

the defendant committed assault under § 111(a) and also either 1) used a deadly or

dangerous weapon or 2) inflicted bodily injury. Thus, the elements of assault

involving physical contact are a subset of assault resulting in bodily injury.

Moreover, given the evidence in the record, the district court did not abuse its

discretion in holding that a juror could determine that the federal agent’s injuries

were caused when he fell down the mountain, rather than due to any assault by

Osorio-Cola.

      AFFIRMED.




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