                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 30 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 16-30121
                                                      16-30190
              Plaintiff-Appellee,
                                                 D.C. No.
 v.                                              9:15-cr-00012-DLC-1

CATHLEEN ROSELYN CANTLON,
                                                 MEMORANDUM*
              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                        Argued and Submitted May 18, 2017
                               Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and LEMELLE,** District Judge.

      Cathleen Cantlon (“Cantlon”) appeals the district court’s order denying her

motion for a new trial following her convictions for (1) interstate mailing of a

firearm, in violation of 18 U.S.C. § 922(e), and (2) possession of a firearm by a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
person who has been committed to a mental institution, in violation of 18 U.S.C. §

922(g)(4). Cantlon argues that the possession conviction is invalid under the Fifth

Amendment because the Montana Supreme Court subsequently vacated the

underlying commitment order and directed the state district court to dismiss it. She

further argues that the evidence supporting the possession conviction led to

prejudicial spillover on the interstate mailing charge during trial. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review for abuse of discretion a district court’s denial of a motion for a

new trial under Federal Rule of Criminal Procedure 33. See United States v.

French, 748 F.3d 922, 934 (9th Cir. 2014); Fed. R. Crim. P. 33. Applying the law

of analogous felon-in-possession cases United States v. Padilla, 387 F.3d 1087,

1090–92 (9th Cir. 2004) and Lewis v. United States, 445 U.S. 55, 60–65 (1980),

the district court ruled that the dismissal of Cantlon’s commitment order did not

operate retroactively to affect her conviction. As a result, her conviction was not

invalid. The court also ruled that there was no “prejudicial spillover,” reasoning

that the undisputed evidence at trial proved the mailing charge “without any

reference whatsoever to [Cantlon’s] mental health condition.” We agree.

      1. In challenging her possession conviction, Cantlon’s attempts to

distinguish Padilla and Lewis fail. As Cantlon’s counsel conceded at argument,


                                          2
Cantlon had a right to a jury trial. And we conclude that the Montana trial court’s

“bare-bone[s]” commitment order was not vacated and dismissed for reasons any

less “technical” than those given in Padilla and Lewis. We agree with Cantlon that

the burden of proof is lower in involuntary commitment proceedings: clear and

convincing evidence is all that is required to prove the existence of a mental

disorder. See In re R.T., 665 P.2d 789, 790 (Mont. 1983). But Cantlon has not

explained why that fact should differentiate the instant case, especially in light of

the Supreme Court’s reading of the “sweeping” text and “broad” purpose of a

similar provision in the same statute at issue here. Lewis, 445 U.S. at 61, 64–65

(interpreting 18 U.S.C. § 922(g)(1)). At the very least, the district court did not

abuse its discretion in applying Padilla and Lewis.

      2. Turning to Cantlon’s mailing conviction, her argument is likewise

unpersuasive. Applying the Lazarenko factors, the balance of competing

considerations do not support a finding of prejudicial spillover. See United States

v. Lazarenko, 564 F.3d 1026, 1044 (9th Cir. 2009). The district court did not abuse

its discretion in reaching the same conclusion, especially, as the court noted, given

the strength of the government’s case.

      AFFIRMED.




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