                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 3 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-30178
                                                       16-30208
                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             2:13-cr-00322-JCC-1

LEWIS DEAN ARMSTRONG,
                                                MEMORANDUM*
                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    15-30215

                Plaintiff-Appellant,            D.C. No.
                                                2:13-cr-00322-JCC-1
 v.

LEWIS DEAN ARMSTRONG,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                  John C. Coughenour, District Judge, Presiding

                            Submitted March 31, 2020**
                               Seattle, Washington

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

      Lewis Armstrong appeals his conviction of aggravated sexual abuse of a

minor under 18 U.S.C. § 2241(c), and the government appeals his sentence. We

have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm in

part and reverse in part.

      Because Armstrong's Fifth Amendment claims are raised for the first time

on appeal, we review each for plain error. See United States v. Houston, 648 F.3d

806, 813 (9th Cir. 2011) (government failing to correct false or perjured

testimony); United States v. Mitchell, 502 F.3d 931, 958 (9th Cir. 2007)

(government shifting the burden of proof); United States v. Makhlouta, 790 F.2d

1400, 1403 (9th Cir. 1986) (government improperly commenting on the

defendant’s right to remain silent).

      Armstrong’s false testimony claim fails because there is no indication that

Long’s testimony was “actually false.” See United States v. Zuno-Arce, 339 F.3d

886, 889 (9th Cir. 2003) (a defendant will prevail on a false testimony claim where

“(1) the testimony (or evidence) was actually false, (2) the prosecution knew or

should have known that the testimony was actually false, and (3) [] the false

testimony was material.”). Armstrong’s claim under Brady v. Maryland, 373 U.S.

83 (1963), fails for the same reason. Armstrong’s burden shifting claim fails

because the prosecution did not suggest Armstrong was required to explicitly deny

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the allegations against him. See United States v. Mares, 940 F.2d 455, 461 (9th Cir.

1991) (“It is a common practice for one side to challenge the other to explain to the

jury uncomfortable facts and inferences.”). Finally, the government did not

improperly comment on Armstrong’s right to remain silent. Where a defendant,

after being advised of his Miranda rights, voluntarily chooses to make a statement,

the rule in Doyle v. Ohio, 426 U.S. 610 (1976), is inapplicable. See Leavitt v.

Arave, 383 F.3d 809, 827 (9th Cir. 2004) (per curiam).

      The district court did not err in failing to hold a competency hearing. We

need not resolve the parties’ dispute as to the appropriate standard of review,

because even under Armstrong’s proposed standard he cannot prevail. A defendant

has a constitutional due process right not to be tried or sentenced if he is legally

incompetent. Pate v. Robinson, 383 U.S. 375, 378 (1966). A Pate hearing is not

required absent a “substantial” or “bona fide” doubt of competency. See de

Kaplany v. Enomoto, 540 F.2d 975, 979–83 (9th Cir. 1976) (en banc). Armstrong

did not offer evidence that introduced substantial doubt as to his competency to

stand trial. He did not contest Dr. Low’s conclusion that he was competent, nor did

he proffer any other evidence that rises to the level of incompetence necessitating a

hearing.

      Even assuming Armstrong has standing, he cannot prevail on his ineffective

assistance of counsel claim. The Sixth Amendment guarantee of effective


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assistance of counsel includes the right to counsel’s undivided loyalty. Wood v.

Georgia, 450 U.S. 261, 271 (1981). To establish a Sixth Amendment conflict of

interest violation, the defendant must show that “his counsel actively represented

conflicting interests” and “an actual conflict of interest adversely affected his

lawyer’s performance.” Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir. 1988)

(citing Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). With respect to the first

prong, Armstrong “must prove actual conflict, not just a possibility of conflict,

‘through a factual showing on the record.’” United States v. Moore, 159 F.3d 1154,

1157 (9th Cir. 1998) (quoting Morris v. California, 966 F.2d 448, 455 (9th Cir.

1991)). Armstrong fails to do so here.

      The district court did not err in declining to give a lesser-included offense

instruction. We review de novo whether the ‘“offense on which instruction is

sought is a lesser-included offense of that charged.’” United States v. Rivera-

Alonzo, 584 F.3d 829, 832 (9th Cir. 2009). A lesser-included offense is “an offense

necessarily included in the offense charged.” Fed. R. Crim. P. 31(c)(1). Armstrong

was charged under 18 U.S.C. § 2241(c), which requires that the defendant

knowingly engaged in a “sexual act”—in Armstrong’s case, “contact between the

mouth and the penis, the mouth and the vulva, or the mouth and the anus.” 18

U.S.C. § 2246(2)(B). The lesser-included offense Armstrong sought was abusive

sexual contact under 18 U.S.C. § 2244(a)(5). Abusive sexual contact requires that


                                           4
the defendant knowingly engage in “sexual contact,” which is defined as “the

intentional touching, either directly or through the clothing, of the genitalia, anus,

groin, breast, inner thigh, or buttocks of any person with an intent to abuse,

humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

18 U.S.C. § 2246(3) (emphasis added). Where the operative definition of a “sexual

act” is contained in subsection (B) of 18 U.S.C. § 2246(2), abusive sexual contact

is not a lesser-included offense of aggravated sexual abuse as it lacks the specific

intent requirement. See United States v. Sneezer, 900 F.2d 177, 178–79 (9th Cir.

1990) (discussing subsection (A)); compare with 18 U.S.C. § 2246(2)(C), (D)

(requiring “an intent to abuse, humiliate, harass, degrade, or arouse or gratify the

sexual desire of any person”).

      The district court erred in determining that the mandatory minimum

sentence under 18 U.S.C. § 2241(c) violated the Eighth Amendment because it was

grossly disproportionate as applied to Armstrong. We review de novo whether a

sentence violates the Eighth Amendment. United States v. Shill, 740 F.3d 1347,

1355 (9th Cir. 2014). Because sexual crimes involving children cause grave

harm, United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (per curiam),

Armstrong’s sentence is “proportionate to the crime for which [he] has been

convicted,” Solem v. Helm, 463 U.S. 277, 290 (1983). The sentence is not cruel




                                           5
and unusual “simply because it is ‘mandatory.’” Harmelin v. Michigan, 501 U.S.

957, 995 (1991).

AFFIRMED in part, REVERSED in part.




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