                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No.    17-50057

                Plaintiff-Appellee,             D.C. No.
                                                8:16-cr-00083-PSG-1
 v.

JOHN ALEXANDER SANCHEZ,                         MEMORANDUM*

                Defendant-Appellant.

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

                     Argued and Submitted December 4, 2018
                              Pasadena, California

Before: D.W. NELSON and WARDLAW, Circuit Judges, and PRATT,** District
Judge.

      John Alexander Sanchez appeals his conviction, by bench trial, of being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We have

jurisdiction under 28 U.S.C. § 1291. Sanchez contends his conviction was not


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
supported by sufficient evidence, because the stipulation to his prior felony was not

properly entered in the evidentiary record. We agree, and reverse his conviction.1

      Sanchez exercised his right to trial after a breakdown in plea negotiations,

and the parties agreed to a bench trial. The Government and Sanchez stipulated

that Sanchez had a prior conviction punishable by over a year of imprisonment, an

essential element of 18 U.S.C. § 922(g)(1). During the trial, however, the

stipulation was not read into the record or admitted as an exhibit. Instead it was

only discussed at a pretrial conference, mentioned by the Government in opening

and closing arguments, and filed on the electronic docket after the close of

evidence. Sanchez and his counsel, for their part, made no statements and took no

action at trial other than to rest. After the district court found Sanchez guilty,

Sanchez filed a motion for a judgment of acquittal arguing that insufficient

evidence existed to sustain the guilty verdict because the stipulation was not

properly admitted under United States v. James, 987 F.2d 648 (9th Cir. 1993). The

district court denied the motion.

      On a sufficiency-of-the-evidence challenge, “[w]e review de novo whether,

‘after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a



      1
       Because we reverse Sanchez’s conviction, we do not reach his as-applied
Second Amendment challenge.

                                           2
reasonable doubt.’” United States v. Espinoza-Valdez, 889 F.3d 654, 656 (9th Cir.

2018) (quoting United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en

banc)). In James, we held that a stipulation that had not been “read to the jury or

received into evidence” could not sustain a conviction, 987 F.2d at 650, because

there was “no fact in evidence that the jury could take as proved,” id. at 651. We

noted that even a correct and signed stipulation not so presented would not be

enough, and expressly rejected the argument that a defendant’s stipulation outside

the trial record removed that issue from consideration such that “no further

evidence on the issue was required because a stipulation is conclusive proof of the

fact agreed to.” Id. at 650.

      Like the defendant in James, Sanchez entered into a stipulation with the

Government regarding an essential element of the offense charged, and the

Government discussed the stipulation generally at trial, but the stipulation was

never received into evidence or read into the evidentiary record. Id. at 649. Also

like in James, no other record evidence suffices to satisfy the Government’s burden

of proof on this essential element, and there was no judicial admission. 2 See id. at



      2
         The Government has abandoned any argument to the contrary by
consigning it to a single sentence in a single footnote. See City of Emeryville v.
Robinson, 621 F.3d 1251, 1262 n.10 (9th Cir. 2010) (citing Acosta-Huerta v.
Estelle, 7 F.3d 139, 144 (9th Cir. 1992) (noting that contentions raised in a
footnote without supporting argument are deemed abandoned)); see also Delgado-
Hernandez v. Holder, 697 F.3d 1125, 1126 n.1 (9th Cir. 2012) (finding a claim

                                          3
650–51. That Sanchez was tried by a judge rather than a jury “is of no

constitutional significance,” and does not expand the evidentiary record. Jackson

v. Virginia, 443 U.S. 307, 317 n.8 (1979). In the absence of the stipulation here,

insufficient evidence exists that would convince any rational trier of fact beyond a

reasonable doubt that Sanchez had been convicted of a crime punishable by over a

year of imprisonment.

      REVERSED.




waived because it was not properly briefed). In any event, we conclude that no
other evidence could support the verdict beyond a reasonable doubt.

                                          4
