                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 6 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30210

                Plaintiff-Appellees,            D.C. No. 1:15-cr-0015-SPW

 v.
                                                MEMORANDUM*
WILLIAM MAURICE SMITH,

                Defendant-Appellant

                 On Appeal from the United States District Court
                          for the District of Montana
                   Susan P. Watters, District Judge, Presiding

                        Argued and Submitted July 9, 2018
                                Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ, ** District
Judge.

      William Maurice Smith appeals his convictions under 21 U.S.C. § 846,

21 U.S.C. § 841(a)(1), and 18 U.S.C. § 924(c)(1)(A), and his sentence, which was

enhanced pursuant to 21 U.S.C. § 851. We have jurisdiction under 28 U.S.C.

§ 1291. As the parties are familiar with the facts, we do not recount them here.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
We affirm.

      1. The requirements of Federal Rule of Criminal Procedure 41 did not apply

to the motel room search because the search was not “federal in character.” United

States v. Crawford, 657 F.2d 1041, 1046 (9th Cir. 1981). Additionally, the district

court’s determination that the evidence mislabeling was merely a mistake was not

clearly erroneous. United States v. Freitas, 800 F.2d 1451, 1454 (9th Cir. 1986).

The district court properly denied Smith’s motion to suppress evidence seized in

his motel room based upon police mislabeling.

      2. The state trooper had probable cause to arrest Smith before he conducted

the search that revealed contraband in Smith’s waistband. United States v. Morgan,

799 F.2d 467, 469 (9th Cir. 1986). The search was a lawful search incident to

arrest. United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) (per curiam). The

district court correctly denied Smith’s motion to suppress the evidence seized from

his waistband.

      3. We held, supra, that the evidence Smith challenges was lawfully obtained,

thus no evidence needs to be excised when determining whether the warrants to

search Smith’s motel room and car were supported by probable cause. United

States v. Giordano, 416 U.S. 505, 555 (1974). Smith does not challenge the

warrants as they stand. The district court correctly concluded that the warrants to

search Smith’s motel room and car were supported by probable cause.


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      4. The jury was not required to unanimously agree as to which of the three

firearms listed in the indictment was used in furtherance of a drug trafficking

crime. See United States v. Ruiz, 710 F.3d 1077, 1081 (9th Cir. 2013).

Accordingly, the district court did not plainly err by not giving sua sponte a

specific unanimity jury instruction for 18 U.S.C. § 924(c). United States v.

Payseno, 782 F.2d 832, 834 (9th Cir. 1986).

      5. Smith would not have been able to challenge his previous convictions, as

listed in the Information, even if the district court had afforded him the opportunity

to do so. See 21 U.S.C. § 851(e); United States v. Housley, 907 F.2d 920, 921-22

(9th Cir. 1990). The district court’s failure to abide by the procedural requirements

of 21 U.S.C. § 851(b) was therefore harmless error. United States v. Severino, 316

F.3d 939, 947-48 (9th Cir. 2003) (en banc).

      6. The district court reasonably relied on the responses to its inquiries

regarding whether Smith had an opportunity to read and discuss his presentence

report with his attorney, thus satisfying Federal Rule of Criminal Procedure

32(i)(1)(A). United States v. Soltero, 510 F.3d 858, 863 (9th Cir. 2007) (per

curiam). Alternatively, because the life sentence imposed was mandatory, Smith

was not prejudiced by the district court’s denial of additional time to review his

presentence report, and any non-compliance with Rule 32(i)(1)(A) was harmless.

Id.


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      7. Although it may be possible that the sentencing enhancement forced the

district court to impose a sentence in conflict with the 18 U.S.C. § 3553(a) factors,

Smith concedes that a constitutional challenge to his mandatory life sentences is

not supported by our court’s precedent. The district court did not unconstitutionally

impose the mandatory life sentences.

      AFFIRMED.




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