                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 20 2015

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10099

                Plaintiff - Appellee,            D.C. No. 2:12-cr-00340-SRB

  v.
                                                 MEMORANDUM*
JERRY MARVETTE BRICE, a.k.a. Jerry
M. Brice,

                Defendant - Appellant.


                     Appeal from the United States District Court
                              for the District of Arizona
                      Susan R. Bolton, District Judge, Presiding

                        Argued and Submitted February 3, 2015
                              San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY, District
Judge.**

       After a four-day trial, a federal jury convicted Jerry Marvette Brice of being

a felon in possession of a firearm. See 18 U.S.C. § 922(g). On appeal, Brice


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
argues that the district court committed reversible error in several of its evidentiary

rulings, by denying his challenge to the government’s peremptory strike of an

African American venire member, and when it sentenced Brice as an armed career

criminal under 18 U.S.C. § 924(e)(1). Because we find that the district court did

not err—or when it did, its errors were harmless—we affirm.

      1. Although the district court erred when it determined that defense witness

Deric McWilliams was “available” within the meaning of Federal Rule of

Evidence 804(a)(1), see United States v. Wilmore, 381 F.3d 868, 872 & n.5 (9th

Cir. 2004), overruled in part on other grounds by United States v. Larson, 495

F.3d 1094, 1100–01 (9th Cir. 2007) (en banc), that error was harmless for several

reasons. First, the government presented ample evidence to support Brice’s

conviction. Second, although neither McWilliams nor defense investigator Lee

Cole testified that McWilliams (rather than Brice) possessed the gun, McWilliams

did otherwise exculpate Brice at trial. During direct examination, McWilliams told

the jury that Brice did not have a weapon when approached by police on the day of

the incident. Notwithstanding this testimony, the jury convicted Brice of

possessing the Sig Sauer pistol. There is no reason to believe that the jurors would

have credited McWilliams’s unsworn, out of court statements to Cole when they

did not credit his sworn testimony at trial. See United States v. Wood, 550 F.2d


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435, 441 (9th Cir. 1976) (finding harmlessness following Rule 804 error when the

excluded declarant “would not have been a credible witness”). Finally, the district

court did not violate Brice’s Sixth Amendment right to present a defense by

excluding McWilliams’s testimony because the testimony did “not bear persuasive

assurances of trustworthiness.” United States v. Gadson, 763 F.3d 1189, 1200–01

(9th Cir. 2014) (quotation marks omitted).

      Second, the district court did not abuse its discretion when it denied Brice’s

motion for a mistrial. The district court found that Jody Daniels’s testimony

established only that he and Brice had been co-defendants, not that Brice had

previously committed a firearms offense. This construction of Daniels’s testimony

is not implausible or illogical. See United States v. Hinkson, 585 F.3d 1247, 1262

(9th Cir. 2009) (en banc).

      Third, the district court did not abuse its discretion by admitting Scott

Davis’s testimony: The government laid a sufficient foundation under Federal

Rule of Evidence 602, and—after careful balancing—the district court properly

found that Davis’s testimony was more probative than unduly prejudicial, see Fed.

R. Evid. 403. Finally, cumulative errors do not require reversal.

      2. The district court did not err when it denied Brice’s challenge under

Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor offered several race-


                                          3
neutral reasons for striking Juror 19 from the venire, the record supports the district

court’s conclusion that those reasons were not pretextual, and the “seated jury

included [one African American] who w[as] not struck by the government,” see

United States v. Cruz-Escoto, 476 F.3d 1081, 1090 (9th Cir. 2007). A comparative

juror analysis does not require a different result. Cf. Miller–El v. Dretke, 545 U.S.

231, 241 (2005).

      3. Finally, the district court did not commit reversible error when it

sentenced Brice under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e)(1). Although the district court erred by applying the ACCA without

comparing the state statutes under which Brice was previously convicted against

the generic federal definitions, the error does not require reversal because it did not

affect Brice’s substantial rights. United States v. Rendon-Duarte, 490 F.3d 1142,

1146–47 (9th Cir. 2007). At least three of Brice’s five state felony

convictions—including a 1993 conviction for attempted murder, Ariz. Rev. Stat.

§ 13-1104, and two 2001 convictions for armed robbery, Ariz. Rev. Stat. §§ 13-

1901, 13-1902, 13-1904—qualify as violent felony convictions within the meaning

of the ACCA. See United States v. Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008).

Nor did the district court’s application of the ACCA violate Brice’s Sixth




                                           4
Amendment rights. See Descamps v. United States, 133 S. Ct. 2276, 2288 (2013).

The 240-month sentence was, therefore, proper.

      AFFIRMED.




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