                                                                         FILED
                           NOT FOR PUBLICATION
                                                                          DEC 9 2015
                    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 14-50032, 14-50071

              Plaintiff-Appellee,                DC Nos. 2:13-cr-00102-ABC-1
                                                     & 5:07-cr-00042-VAP-1
 v.

JOSE ROLANDO RENDEROS, aka                       MEMORANDUM*
Eduardo Rodriguez

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Audrey B. Collins, District Judge, Presiding

                      Argued and Submitted October 20, 2015
                               Pasadena, California

Before:      PREGERSON, CALLAHAN, Circuit Judges and BASTIAN, District
Judge.**

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
      Jose Rolando Renderos appeals his convictions on seven counts of access

device fraud, one count of trafficking in counterfeit goods, and one count of

aggravated identity theft. He contends evidence used at trial was obtained in

violation of the Fourth Amendment and that a faulty jury instruction deprived him

of his due process right to a fair trial. He also appeals a supervised release

revocation premised on these instant convictions. We affirm.

      Whether a jury instruction was an accurate statement of law is reviewed de

novo. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). This Court

reviews the denial of a motion to suppress de novo, while reviewing the district

court’s underlying factual findings for clear error. United States v. Giberson, 527

F.3d 882, 886 (9th Cir. 2008). A district court’s decision to revoke a term of

supervised release is reviewed for abuse of discretion. United States v. Harvey, 659

F.3d 1272, 1274 (9th Cir. 2011).

                                 I.    Jury Instruction

      Defendant appeals his conviction for one count of aggravated identity theft

under 18 U.S.C. § 1028A. This conviction carries a mandatory twenty-four-month

sentence to run consecutive to any other sentence. Defendant argued that the court

provided jurors with a faulty jury instruction because the instruction did not require

the jury to find he used another person’s identity without that person’s permission.
After briefing was completed, this Court decided United States v. Osuna-Alvarez,

which is controlling here. 788 F.3d 1183 (9th Cir. 2015). In Osuna-Alvarez, we

held that “despite its title, § 1028A does not require theft as an element of the

offense.” Id. at 1185. Accordingly, the district court’s jury instruction concerning

§ 1028A was an accurate statement of the law.

                           II.   Search of the Storage Unit

      Defendant also challenges evidence admitted at trial that was found during a

search of a storage unit. The search was conducted pursuant to a search warrant

obtained—in part—based on evidence viewed through an opening from an empty

adjacent unit and a shared hallway. An individual tenant does not have a legitimate

reasonable expectation of privacy in a hallway shared by many others, even if the

hallway is secured with locks or key-codes. United States v. Nohara, 3 F.3d 1239,

1241-42 (9th Cir. 1993) (holding that a tenant does not have an objective

reasonable expectation of privacy in a shared hallway of a secure apartment

building). Investigators were lawfully in the hallway and empty unit with the

storage facility’s permission. Accordingly, the investigators' observation of

materials within Defendant’s storage unit from the adjacent unit and hallway did

not require a warrant because the items were in plain view. Horton v. California,


                                           3
496 U.S. 128, 134-37 (1990); United States v. Stafford, 416 F.3d 1068, 1076 (9th

Cir. 2005). Thus, the evidence from Defendant’s storage unit was properly

admitted at trial.

                            III.   Search of the Silver Van

       Defendant also appeals the denial of his motion to suppress the evidence

seized from the silver van he was driving. Defendant maintains the search of the

van was not pursuant to the anticipatory warrant and that no exception to the

warrant requirement applied. The district court was correct in determining that the

warrant was executed properly.

       Defendant argues the anticipatory warrant strictly limited any search to the

location where the package was first opened and the agents did not know where the

package was actually first opened.

       The anticipatory warrant’s triggering clause states:

              The triggering event to activate this anticipatory search warrant
       and permit its execution is once the beeper device alert [sic] agents, or
       the agents otherwise determine, that the SUBJECT PACKAGE has
       been opened (whether at the ADDRESSEE PREMISES or at another
       location), at that point and with the warrant sought by this affidavit,
       agents will execute this warrant and enter the relevant SUBJECT
       DELIVERY LOCATION to search for and seize the SUBJECT
       PACKAGE and the other items . . . .



                                           4
      In turn, the Subject Delivery Location is “strictly limited to the location in

which the triggering event occurs . . . .” Because the triggering event occurs either

when the package was actually opened, or when agents otherwise determine the

package has been opened, the Subject Delivery Location may not necessarily be

the location the package was initially opened. In its order denying the motion to

suppress, the district court found that an agent determined the package was opened

when he looked through the window of the silver van. This finding may only be

reversed upon a showing of clear error—a showing Defendant has not made.

Instead, Defendant continues to rely on his facially incorrect reading of the

anticipatory warrant. Accordingly, the triggering clause was met and agents had

lawful authority to conduct a search of the van pursuant to the warrant. Thus,

Defendant’s motion to suppress was properly denied and evidence obtained from

the van was properly admitted.

                         IV.     Supervised Release Violation

      Because we affirm Defendant’s underlying convictions, we also affirm the

corresponding revocation of supervised release based on the convictions.

AFFIRMED.




                                          5
