                                                                             FILED
                           NOT FOR PUBLICATION                               NOV 23 2015

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



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10223

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00068-MCE-1

 v.
                                                 MEMORANDUM*
RAZHAM DEMAR BROADNAX, AKA
Razham Demore Broadnax,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Morrison C. England, Jr., Chief District Judge, Presiding

                      Argued and Submitted August 13, 2015
                            San Francisco, California

Before:       KOZINSKI and TALLMAN, Circuit Judges, and ROSENTHAL,**
              District Judge.

      1. The district court’s finding that Horton consented to the search is not

clearly erroneous. United States v. Mayer, 560 F.3d 948, 956 (9th Cir. 2009).

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
          The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
                                                                                  page 2
Officer McPhail testified that he twice asked for her consent to search the house

and she said, “You do what you gotta do.” Horton testified otherwise, but the

district court could reasonably believe the officer.

      Georgia v. Randolph’s exception to the rule that police may conduct a

warrantless search of premises with the “voluntary consent of an occupant” does

not apply here. See 547 U.S. 103, 106 (2006). This narrow exception “requires

that the co-occupant both be physically present and expressly refuse consent.”

United States v. Moore, 770 F.3d 809, 813 (9th Cir. 2014). Although Broadnax

testified during the suppression hearing that he objected to the search, his

testimony was contradicted by three police officers, all of whom testified that

“Broadnax never voiced any objection to them entering the residence.”

      Nor did the district court err in finding that Broadnax consented to the

officer’s use of his phone. The district court was entitled to rely on “the police

state[ment] that Broadnax gave the phone to Officer McPhail.” But even if the

officer’s use of the phone was nonconsensual, this would not vitiate the consent to

search the house obtained through the use of the phone.
                                                                                page 3
      2. Lannom’s testimony didn’t address Broadnax’s state of mind, so its

admission was not plain error. See United States v. Gomez-Norena, 908 F.2d 497,

500 (9th Cir. 1990)


      3. The district court didn’t abuse its discretion by admitting Broadnax’s

prior convictions to prove Broadnax’s motive and intent. See United States v. Vo,

413 F.3d 1010, 1018–19 (9th Cir. 2005).


      4. The district court didn’t abuse its discretion in denying Broadnax’s

request for a continuance to investigate Bailey’s convictions. Bailey’s statements

during the 911 call were corroborated by the evidence that the officers found at

Horton’s home. Moreover, the license plate number that Bailey gave the 911

operator matched a car rented by Horton. Undermining Bailey’s credibility with

further impeachment evidence would thus have had a negligible effect on the

evidence he presented. Therefore, Broadnax “has not shown that his verdict would

have been different had the district court granted his request for continuance.” See

United States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011).


      5. Broadnax kept a gun with him during the drug deal, which he stored near

the drugs at Horton’s home. He maintained “accessibility of his gun” where he
                                                                             page 4
kept his drugs, “permit[ting] the inference that the gun emboldened him to

continue his illegal conduct.” United States v. Routon, 25 F.3d 815, 819 (9th Cir.

1994); see also United States v. Gonzales, 506 F.3d 940, 946–47 (9th Cir. 2007)

(en banc). The court thus properly applied the firearm enhancement. U.S.S.G.

§ 2K2.1(b)(6)(B).


      AFFIRMED.
