                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                                 SEP 27 2011

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

UNITED STATES OF AMERICA,                        No. 07-30098

              Plaintiff - Appellee,              D.C. No. CR-06-02112-EFS

  v.
                                                 MEMORANDUM*
RICARDO GONZALEZ,

              Defendant - Appellant.


                On Remand from the United States Supreme Court



Before: B. FLETCHER, PAEZ, and N.R. SMITH, Circuit Judges.

       We review this appeal for the third time, on remand a second time from the

United States Supreme Court. On June 27, 2011, the Court granted certiorari,

vacated, and remanded the case for further consideration in light of its recent

decision in Davis v. United States, 131 S. Ct. 2419 (2011). At issue is defendant -

appellant Gonzalez’s conviction for Possession of a Firearm and Ammunition by a




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Prohibited Person, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

       Gonzalez’s conviction resulted from a firearm found when the police

stopped a car in which Gonzalez was a passenger. The police, following the arrest

of another passenger for out-standing warrants, searched the passenger

compartment of the car and discovered a loaded 9 millimeter Beretta firearm inside

the glovebox. Gonzalez filed a motion to suppress, asserting the search of the car

violated his Fourth Amendment rights, which the district court denied. Following

his conviction, Gonzalez appealed both his conviction and sentence.

       We affirmed the district court on all aspects of the appeal. United States v.

Gonzalez, 290 Fed. App’x 51 (9th Cir. 2008). We affirmed the denial of the

motion to suppress based on our court’s application of the Supreme Court’s

holding in New York v. Belton, 453 U.S. 454, 460 (1981). See United States v.

Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (permitting a warrantless vehicle

search incident to the arrest of an occupant of the vehicle). Gonzalez petitioned for

a writ of certiorari.

       On April 21, 2009, the Supreme Court in Arizona v. Gant, 556 U.S. 332, 129

S. Ct. 1710 (2009), held that the broad reading of Belton by our court and other




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courts was in error. Reading Belton more narrowly, the Court announced as the

rule for vehicle searches incident to arrest:

      Police may search a vehicle incident to a recent occupant’s arrest only
      if the arrestee is within reaching distance of the passenger
      compartment at the time of the search or it is reasonable to believe the
      vehicle contains evidence of the offense of arrest. When these
      justifications are absent, a search of an arrestee’s vehicle will be
      unreasonable unless police obtain a warrant or show that another
      exception to the warrant requirement applies.

Gant, 129 S. Ct. at 1723-24.

      The Supreme Court granted Gonzalez’s certiorari petition, vacated our

panel’s decision, and remanded to us “for further consideration in light of Arizona

v. Gant.” Quintana v. United States, 129 S. Ct. 2156 (2009) (citation omitted).

We applied Gant and rejected the government’s argument that suppression was not

warranted in light of the good faith exception to the exclusionary rule. See United

States v. Gonzalez, 578 F.3d 1130, 1132–33 (9th Cir. 2009), rehearing denied, 598

F.3d 1095 (9th Cir. 2010). Following our opinion, the government filed a

certiorari petition with the Supreme Court.

      On June 16, 2011, the Supreme Court decided Davis v. United States, 131 S.

Ct. 2419 (2011), holding that “searches conducted in objectively reasonable

reliance on binding appellate precedent are not subject to the exclusionary rule,”

even when that appellate precedent is later overruled. Davis, 131 S. Ct. at 2423-


                                           3
2324, 2434. The Court granted the government’s petition, vacated our panel’s

decision for a second time, and remanded for us to consider our decision in light of

Davis. United States v. Gonzalez, --- S. Ct. ----, 2011 WL 2518818 (2011).

      On remand, Gonzalez argues that Davis is distinguishable. Gonzalez claims

that he is functionally equivalent to a party to the Gant decision because his

petition for certiorari was pending at the same time that Gant was under review by

the Court, whereas in Davis the case was merely pending appellate review at the

time the Court decided Gant. We do not think this distinction matters.

      The Supreme Court in Davis responded to a similar argument and denied the

remedy of suppression because the defendant was not the petitioner in a case that

resulted in the overruling of one of the Supreme Court’s Fourth Amendment

precedents. Davis, 131 S. Ct. at 2433–2434.1 The Court allowed that

      in a future case, we could, if necessary, recognize a limited exception
      to the good-faith exception for a defendant who obtains a judgment
      over-ruling one of our Fourth Amendment precedents. But this is not
      such a case. Davis did not secure a decision overturning a Supreme
      Court precedent; the police in his case reasonably relied on binding
      Circuit precedent.



      1
        In Gant, the Court did not grant the defendant the remedy of suppression.
Rather, the Arizona Supreme Court ordered suppression because it held the police
search of the automobile incident to arrest in that case was unreasonable under
Belton and Chimel v. California, 395 U.S. 752 (1969), and the United States
Supreme Court affirmed. Gant, 129 S. Ct. at 1714–16.

                                          4
Davis, 131 S. Ct. at 2434 (citations omitted). The facts in Davis, and the Supreme

Court’s holding, are on all fours with this case. Gonzalez did not secure a decision

overturning a Supreme Court precedent. And there is no dispute that the police

search here complied with binding Ninth Circuit precedent that was later overruled

by the Supreme Court’s decision in Gant.

      Because the search of the vehicle in which Gonzalez was a passenger was

permissible under binding circuit precedent at the time it occurred, we must apply

Davis and affirm the district court’s denial of the motion to suppress, as well as

Gonzalez’s conviction.

AFFIRMED.




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