                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50146

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00470-SJO-1
 v.

STEVEN NICHOLSON, AKA Steve                     MEMORANDUM*
Vincent Nicholson, AKA Steven Vincent
Nicholson, AKA Kendal Stanley, AKA
Sergio Steve Washington,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                    S. James Otero, District Judge, Presiding

                             Submitted April 2, 2020**
                               Pasadena, California

Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.

      Steven Nicholson appeals his conviction and sentence for being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g) and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
924(a)(2). We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

We reverse.

      1.      The district court abused its discretion in denying Nicholson’s request

for a continuance so that he could proceed with substitute counsel. See United

States v. Nguyen, 262 F.3d 998, 1002 (9th Cir. 2001). District courts ordinarily

have “broad discretion” to address continuance motions made on the eve of trial.

See United States v. Castro, 972 F.2d 1107, 1109 (9th Cir. 1992), abrogated on

other grounds by United States v. Jimenez Recio, 537 U.S. 270, 277 (2003). But

here, the denial implicated Nicholson’s Sixth Amendment right to counsel, so we

must balance several factors to determine whether the district court’s denial was

“fair and reasonable,” including the “inconvenience to the witnesses, court,

counsel, and parties,” whether “other continuances [had] been granted,” whether

“the request for a delay [was] based on legitimate reasons,” whether the delay was

the “defendant’s fault,” and whether the denial “prejudice[d] the defendant.”

United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979) (per curiam); see also

Morris v. Slappy, 461 U.S. 1, 11–12 (1983) (explaining that a district court’s

“arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for

delay’” constitutes an abuse of discretion) (quoting Ungar v. Sarafite, 376 U.S.

575, 589 (1964)). We have also instructed district courts to “summarize in the

record [the] reasons for the denial.” United States v. Garrett, 179 F.3d 1143, 1147


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(9th Cir. 1999) (en banc).

      We conclude that the district court’s explanation was insufficient. When

Nicholson first moved for a continuance without requesting substitute counsel, the

district court adequately considered the three reasons for a continuance that

Nicholson gave, and it provided a reasoned explanation for denying Nicholson’s

request. But when substitute counsel appeared in court later that morning and

explained that he would represent Nicholson if he received a continuance to

prepare for trial, the district court responded only that “if there is a request to

substitute counsel in, [that] would be denied because the request is not timely,” and

“[i]f you are requesting a continuance, the request would be denied,” without

explaining further. In light of the apparent conflicts between Nicholson and his

appointed counsel during the first trial, the unexplained note from Nicholson to the

judge the morning before the second trial (which might have related to his desire to

replace his appointed counsel), and the government’s non-opposition to the

continuance, we cannot conclude that the district court gave adequate consideration

to Nicholson’s Sixth Amendment rights, see Nguyen, 262 F.3d at 1002–04, or to

the pertinent equitable factors, see Leavitt, 608 F.2d at 1293.

      2.     We reject Nicholson’s challenge to the sufficiency of the evidence

that he was convicted of “a crime punishable by imprisonment for a term

exceeding one year.” 18 U.S.C. § 922(g)(1). Nicholson did not raise this challenge


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below, so we review for plain error. See United States v. Benamor, 937 F.3d 1182,

1188 (9th Cir. 2019). Nicholson contends that the inapplicability of the exceptions

outlined in 18 U.S.C. § 921(a)(20) is an element of a section 922(g)(1) offense, and

that the government failed to prove that those exceptions do not apply here. Our

decisions are inconsistent with that theory. See United States v. Laskie, 258 F.3d

1047, 1049–50 (9th Cir. 2001) (treating section 921(a)(20) as an issue of law); see

also Benamor, 937 F.3d at 1186–87 (holding that the section 921(a)(3) antique-

firearm exception to section 922(g)(1) is an affirmative defense, not an element).

In addition, Nicholson stipulated to his felon status, which “relieved the

government of the burden to prove [his] status as a felon.” Benamor, 937 F.3d at

1188.

        3.    Because we reverse the conviction based on the district court’s abuse

of discretion in denying Nicholson’s request for a continuance, we need not

consider Nicholson’s arguments that the district court erred in instructing the jury

under Rehaif v. United States, 139 S. Ct. 2191 (2019), or his challenge to the

district court’s application of section 2K2.1 of the United States Sentencing

Guidelines.

        The government’s request for judicial notice (Dkt. No. 32) is GRANTED.

        REVERSED.




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