                           NOT FOR PUBLICATION                                FILED
                    UNITED STATES COURT OF APPEALS                             AUG 02 2013

                                                                           MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                            U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                       No. 12-30078

             Plaintiff - Appellee,              D.C. No. 3:09-cr-05810-RBL-1

 v.
                                                MEMORANDUM*
BILLY MIRANDA FLORES,

             Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                        Argued and Submitted June 7, 2013
                               Seattle, Washington

Before: ALARCÓN, GILMAN**, and IKUTA, Circuit Judges.


      Billy Miranda Flores (“Flores”) was convicted of conspiracy to distribute

oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; three counts



 *
   This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
  The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
of distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); one

count of possession with intent to distribute methadone, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(C); and one count of possession of a firearm in furtherance of

possession with intent to distribute methadone, in violation of 18 U.S.C.

§ 924(c)(1)(A). The district court sentenced Flores to 240 months

imprisonment—180 months for the drug charges and 60 months for the firearm

charge, imposed consecutively. He appeals his conviction on the firearm charge

and his sentence. In this memorandum disposition, we consider only Flores’s

challenges to his conviction for possession of a firearm in furtherance of the

methadone charge. In a concurrently filed opinion, we address Flores’s separate

challenges to his sentence. See United States v. Flores, __F.3d__ (9th Cir. 2013).

We recite here only the facts necessary to explain our memorandum decision. We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm the

judgment of conviction.

                                          I

      Flores first contends the district court erred in admitting the testimony of a

law enforcement agent that drug traffickers often carry guns for protection. We

disagree.



                                          2
      The record indicates that the Drug Enforcement Administration (“DEA”)

agent testified as a lay witness, not as an expert witness, and that he testified based

on his experience, which is a proper basis for lay opinion testimony. See Fed. R.

Evid. 701 advisory committee’s note (2000) (discussing distinction between lay

and expert opinion testimony). We review admission of lay opinion testimony for

abuse of discretion. United States v. Martinez, 657 F.3d 811, 818–19 (9th Cir.

2011). Rule 701 of the Federal Rules of Evidence provides that lay opinion

testimony is limited to opinions: “(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or determining a fact

in issue; and (c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.”

      The DEA agent’s testimony satisfies each of the requirements of Rule 701 of

the Federal Rules of Evidence. First, the agent was familiar with drug

investigations and firearms, and his testimony was rationally based on his personal

knowledge and first-hand observations from previous drug investigations. See

Martinez, 657 F.3d at 818–19 (upholding admission of lay testimony by a former

member of the Mexican Mafia on the meaning of coded communications because

“[f]rom long experience in writing notes for the organization, the witness had the



                                           3
‘personal knowledge’ required by” the Federal Rules of Evidence); United States v.

Durham, 464 F.3d 976, 982–83 (9th Cir. 2006) (allowing lay testimony that a

substance the witness observed being used was marijuana). Second, the DEA

agent’s testimony was helpful to “the determination of a fact in issue,” i.e., whether

Flores used a firearm “in furtherance of” a drug offense or, as Flores testified at

trial, merely held the gun as collateral for a money loan to his father. Fed. R. Evid.

701(b); see also United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995)

(citing Fed. R. Evid. 701(a), (b)). Finally, the agent’s observation that drug

traffickers often possess weapons for protection is common enough and requires

such limited expertise that it is admissible under Rule 701. See VonWillie, 59 F.3d

at 929 (upholding admission of an officer’s lay testimony that it is common for

drug traffickers to possess and use weapons to protect their drugs and to intimidate

buyers). We are persuaded that the district court acted within its discretion in

admitting the DEA agent’s testimony.

                                           II

      Flores next argues that the evidence presented to the jury was not sufficient

to support his conviction for possession of a firearm in furtherance of the

methadone count. We disagree.



                                           4
      Where, as here, a defendant fails to move for acquittal during trial, our

review is limited to plain error or to prevent manifest injustice. United States v.

Singh, 532 F.3d 1053, 1056–57 (9th Cir. 2008); United States v. Ross, 338 F.3d

1054, 1057 (9th Cir. 2003). “The evidence is sufficient to support a conviction if,

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

reasonable doubt.” United States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007)

(citation, emphasis, and internal quotation marks omitted).

      To prove that Flores possessed a firearm in furtherance of a drug trafficking

crime in violation of § 924(c)(1)(A), the Government was required to show that:

(1) Flores possessed methadone with intent to distribute it; (2) Flores possessed the

firearm; and (3) Flores’s possession of the firearm was “in furtherance” of the drug

trafficking crime. United States v. Mosley, 465 F.3d 412, 415 (9th Cir. 2006).

      Here, Flores contests only whether the evidence at trial sufficiently

established the “in furtherance” element. The “in furtherance” element “requires

proof that the defendant possessed the weapon to promote or facilitate the

underlying crime,” a question that “turns on the intent of the defendant.” United

States v. Krouse, 370 F.3d 965, 967, 968–69 (9th Cir. 2004) (holding that five



                                           5
high-caliber firearms and ammunition found in close proximity to and strategically

located near substantial evidence of drug trafficking were sufficient to support the

defendant’s § 924(c) conviction). That intent can be inferred “when facts in

evidence reveal a nexus between the guns discovered and the underlying offense.”

Id. at 968. “Whether the requisite nexus is present may be determined by

examining, inter alia, the proximity, accessibility, and strategic location of the

firearms in relation to the locus of drug activities.” United States v. Rios, 449 F.3d

1009, 1012 (9th Cir. 2006) (citing Krouse, 370 F.3d at 968).

      Here, there was a sufficient nexus between the firearm and the methadone

charge to sustain the jury’s verdict. First, the jury found Flores guilty of

possessing a distributable amount of methadone, which was discovered in a safe in

Flores’s office just one foot away from the firearm. Furthermore, the firearm was

readily accessible because it was located in an unlocked drawer and was loaded. In

addition, the firearm was discovered in Flores’s office, which several witnesses

testified was the primary site, or “locus,” of Flores’s drug trafficking operations.

Finally, a codefendant testified that Flores possessed a gun on at least one occasion

while dealing drugs and encouraged him to carry a weapon to protect himself while

dealing drugs for Flores. Another codefendant testified that Flores told him there



                                           6
was a gun in the drawer of Flores’s desk if the codefendant encountered any

problems while dealing drugs out of Flores’s office.

      This independent evidence, coupled with Flores’s testimony at trial, forms

an adequate basis for the jury’s verdict. See United States v. Kenny, 645 F.2d

1323, 1346 (9th Cir. 1981) (“When the defendant elects to testify, he runs the risk

that if disbelieved, the trier of fact may conclude that the opposite of his testimony

is the truth.” (citing United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975);

United States v. Chase, 503 F.2d 571, 573 (9th Cir. 1974))). Viewing the evidence

in the light most favorable to the prosecution, the district court did not plainly err

in failing to dismiss the § 924(c)(1)(A) count for lack of evidence.

      The judgment of conviction is AFFIRMED.




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