                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                               FILED
                            FOR THE NINTH CIRCUIT                                 MAR 27 2015

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

UNITED STATES OF AMERICA,                         No. 14-10216

              Plaintiff - Appellee,               D.C. No. 3:12-cr-00004-RCJ-
                                                  VPC-1
  v.

DANIEL JAMES DRAPER,                              MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                       Argued and Submitted March 13, 2015
                            San Francisco, California

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

       1. Daniel Draper argues that the district court abused its discretion in

excluding newspaper reports, arrest records, and witness testimony relating to prior

arrests of the victim, Linford Dick. The district court reasoned that such evidence




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                             Page 2 of 5
was inadmissible under Federal Rules of Evidence 404(b) and 802. Draper

preserved his objection to the district court’s ruling by raising the issue at trial.

      A defendant has acted in reasonable self-defense if he (1) had “a reasonable

belief that the use of force was necessary to defend himself or another against the

immediate use of unlawful force,” and (2) used “no more force than was

reasonably necessary in the circumstances.” United States v. Biggs, 441 F.3d

1069, 1071 (9th Cir. 2006). Draper contends that the excluded evidence was

relevant to the first prong of this showing and should have been admitted. In

United States v. James, 169 F.3d 1210 (9th Cir. 1999) (en banc), we held that

extrinsic evidence of the victim’s past violent acts should have been admitted to

corroborate the defendant’s testimony that she had reason to fear the victim. Id. at

1214. Although James provides some support for Draper’s argument, we need not

decide whether the district court abused its discretion by excluding Draper’s

proffered evidence. Even if the district court abused its discretion in that regard,

any such error was harmless. See United States v. Bradley, 5 F.3d 1317, 1322 (9th

Cir. 1993).

      The government has met its burden of showing that admission of the

excluded evidence would not have been likely to change the jury’s verdict. The

evidence at trial overwhelmingly negated the second prong of the test for self-
                                                                          Page 3 of 5
defense—whether Draper used no more force than was reasonably necessary. At

trial, Draper admitted that he had decided to confront Dick because he “felt that

[Dick] was going to be coming after [Draper] anyway.” He also admitted that,

upon arriving at his ex-wife’s home and finding that the door would not open, he

broke through the window because he “wanted this confrontation[,] . . . wanted to

be done with [Dick].” Once inside, Draper shot Dick and “use[d] the gun as a

battering ram, hit[ting] [Dick] in the head” and fracturing his skull. Draper

testified that he feared for his safety because Dick had charged at him, but Dick

was unarmed and Draper had gotten the better of him in their two prior physical

altercations. Because the excluded evidence would have been admissible only as

to the first prong of the test for self-defense, its admission would not have changed

the jury’s evaluation of the evidence relating to the second prong. On this record,

then, it is more probable than not that even if the excluded evidence had been

admitted, the jury would have returned the same verdict.

      2. The district court did not commit reversible error at sentencing. First,

there was no procedural error. “[W]hen a party raises a specific, nonfrivolous

argument tethered to a relevant [18 U.S.C.] § 3553(a) factor . . . the judge should

normally explain why he accepts or rejects the party’s position,” but he need not

otherwise “tick off each of the § 3553(a) factors to show that [he] has considered
                                                                           Page 4 of 5
them.” United States v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008) (en banc).

While the district judge in this case did not explicitly address every factor raised by

the defense, he adopted the prosecutor’s reasoning, which had addressed those

factors.

      Second, although the sentence was six years above the high end of the

applicable guidelines range, it was not substantively unreasonable. See United

States v. Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en banc) (“[R]eview of the

substantive reasonableness of a sentence is deferential and will provide relief only

in rare cases.”). While Draper appears to have led a relatively peaceful life and

enjoyed strong community support, the district court did not abuse its discretion in

imposing the statutory maximum sentence in light of the brutal nature of the crime

and Draper’s apparent lack of remorse. See id. at 1086.

      Finally, Draper argues that the district court sentenced him to a crime of

which he was acquitted (murder), thereby violating his Sixth Amendment rights.

However, the sentence was within the statutory ranges for voluntary manslaughter

and use of a firearm in connection with a crime of violence causing death, the

crimes of which Draper was convicted. See 18 U.S.C. § 924; 18 U.S.C. § 1112.

Therefore, no Sixth Amendment violation occurred. See United States v. Alleyne,
                                                                         Page 5 of 5
133 S. Ct. 2151, 2163 (2013) (noting the “broad discretion of judges to select a

sentence within the range authorized by law”).

      AFFIRMED.
