                                                                               FILED
                              NOT FOR PUBLICATION                               JUL 30 2012

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               )     No. 11-10204
                                        )
      Plaintiff – Appellee,             )     D.C. No. 4:09-cr-00337-CW-1
                                        )
v.                                      )     MEMORANDUM*
                                        )
DANIEL LAWRENCE MCCOY,                  )
                                        )
      Defendant – Appellant.            )
                                        )

                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                               Submitted July 17, 2012**
                               San Francisco, California

Before:      FERNANDEZ, PAEZ, and WATFORD, Circuit Judges.

      Daniel Lawrence McCoy appeals his conviction and sentence for possession

of cocaine base with intent to distribute and for felon in possession of a firearm.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
See 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii); 18 U.S.C. § 922(g)(1). We affirm in part

and vacate and remand in part.

      (1)      The district court did not err1 when, based on the evidence in the

record, it was persuaded2 that the officer had probable cause3 to stop McCoy’s

automobile for a brake light violation.4

      (2)      The prosecutor sought and obtained a superseding indictment before

trial, though after McCoy filed a motion to suppress evidence. The superseding

indictment added the charge of possession with intent to distribute cocaine base on

February 3, 2009, to the already charged offense relating to a February 28, 2009,

incident. The mere adding of the new charge at that stage of the proceedings did

not give rise to an appearance of vindictiveness. See United States v. Kent, 649

F.3d 906, 912–13 (9th Cir.) cert. denied, __ U.S. __, 132 S. Ct. 355, 181 L. Ed. 2d

224 (2011); United States v. Gamez-Orduno, 235 F.3d 453, 463 (9th Cir. 2000);

      1
       See United States v. Ewing, 638 F.3d 1226, 1229 (9th Cir. 2011); see also
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74, 105 S. Ct. 1504,
1511, 84 L. Ed. 2d 518 (1985); United States v. Stanley, 653 F.3d 946, 952 (9th
Cir. 2011).
      2
       See United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001); United
States v. Marshall, 488 F.2d 1169, 1186 (9th Cir. 1973).
      3
       See Whren v. United States, 517 U.S. 806, 809–10, 116 S. Ct. 1769, 1772,
135 L. Ed. 2d 89 (1996).
      4
          See Cal. Veh. Code § 24252(a).

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United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir. 1996). Nor was

vindictiveness otherwise shown.

      (3)    The district court did not abuse its discretion when it allowed the

government to rescind its mistakenly exercised last peremptory challenge and to

replace it with a different peremptory challenge, but also granted relief to McCoy

in order to avoid any unfairness to him. See United States v. Warren, 25 F.3d 890,

894 (9th Cir. 1994). Nor has McCoy pointed to any prejudice that resulted from

the district court’s handling of the unusual situation it faced. See Rivera v. Illinois,

556 U.S. 148, 160–61, 129 S. Ct. 1446, 1455, 173 L. Ed. 2d 320 (2009); United

States v. Martinez-Salazar, 528 U.S. 304, 316–17, 120 S. Ct. 774, 782, 145 L. Ed.

2d 792 (2000); United States v. Lindsey, 634 F.3d 541, 550 (9th Cir.), cert. denied,

__ U.S. __, 131 S. Ct. 2475, 179 L. Ed. 2d 1232 (2011); United States v.

Springfield, 829 F.2d 860, 863–64 (9th Cir. 1987).

      (4)    The evidence was sufficient to support the jury’s decision that McCoy

knowingly possessed cocaine base with intent to distribute it. See United States v.

Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000); see also United States v.

Lopez, 477 F.3d 1110, 1113–14 (9th Cir. 2007); United States v. Ramirez, 608

F.2d 1261, 1264 (9th Cir. 1979). He asserts that the evidence would allow for an

inference that he merely knowingly possessed the cocaine base. Perhaps so, but

                                           3
that is not the test for sufficiency. See United States v. Nevils, 598 F.3d 1158,

1161, 1164–65 (9th Cir. 2010) (en banc).

      (5)      McCoy argues that the district court was required to instruct the jury

that it must unanimously agree on the particular felony that was an element of the

felon in possession charge against him. Assuming, without deciding, that a

unanimity instruction was required, suffice it to say that the record shows that the

district court did give a unanimity instruction.

      (6)      McCoy next asserts that even though he committed his possession

with intent to distribute offense before the enactment of the Fair Sentencing Act5

on August 3, 2010, the Act applies to him because he was sentenced after that date.

We agree. See Dorsey v. United States, 567 U.S. __, 132 S. Ct. 2321, __ L. Ed. 2d

__, Nos. 11-5683 and 11-5721, slip op. at 1–2 (June 21, 2012). Thus, we vacate

McCoy’s sentence and remand for resentencing.

      (7)      McCoy finally argues that the district court erred when it enhanced his

offense level for possession of cocaine base with intent to distribute by two levels

on the basis that he possessed a firearm during the commission of that offense on

February 3, 2009. See USSG §2D1.1(b)(1) (Nov. 2010); see also id. at comment.

(n.3). He did not raise this issue at the district court, and we will not opine on his



      5
          Fair Sentencing Act of 2010, Pub. L. No. 111-120, 124 Stat. 2372 (2010).

                                           4
argument. See United States v. Crandall, 525 F.3d 907, 915 n.9 (9th Cir. 2008).

We leave it to the district court to consider that argument in the first instance.

      McCoy’s conviction is AFFIRMED; his sentence is VACATED and

REMANDED for further proceedings.




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