                                                                             FILED
                    UNITED STATES COURT OF APPEALS                           SEP 12 2011

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




UNITED STATES OF AMERICA,                       No. 07-30493

              Plaintiff - Appellee,             D.C. No. CR-07-00028-RHW
                                                Eastern District of Washington,
  v.                                            Spokane

DEAN RUSSELL SHELTON,
                                                ORDER
              Defendant - Appellant.



UNITED STATES OF AMERICA,                       No. 07-30494

             Plaintiff - Appellant,             D.C. No. CR-07-00028-RHW

  v.

DEAN RUSSELL SHELTON,

             Defendant - Appellee.


Before: KOZINSKI, Chief Judge, B. FLETCHER and RAWLINSON, Circuit
Judges.

       On April 5, 2010, and again on July 22, 2010, we granted the Government’s

motion to stay the mandate in these appeals while the Solicitor General pursued a

writ of certiorari in United States v. Gonzalez, 578 F.3d 1130, 1132–33 (9th Cir.

2009), reh'g en banc denied, 598 F.3d 1095 (9th Cir. 2010). The Supreme Court
granted certiorari, vacated the judgment and remanded Gonzalez for further

consideration in light of its recent opinion in Davis v. United States, 131 S. Ct.

2419 (2011). United States v. Gonzalez, --- S.Ct. ----, 2011 WL 2518818 (June 27,

2011). In light of these developments, we lift the stay and withdraw our

memorandum disposition filed on March 29, 2010 and published at 374 Fed. Appx.

736 (9th Cir. 2010). A new memorandum disposition will be filed separately.
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              SEP 12 2011

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

UNITED STATES OF AMERICA,                        No. 07-30493

             Plaintiff - Appellee,               D.C. No. CR-07-00028-RHW

  v.
                                                 MEMORANDUM *
DEAN RUSSELL SHELTON,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 07-30494

             Plaintiff - Appellant,              D.C. No. CR-07-00028-RHW

  v.

DEAN RUSSELL SHELTON,

             Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                   Robert H. Whaley, District Judge, Presiding

                    Argued and Submitted November 18, 2008
                              Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                               Withdrawn April 5, 2010
                              Resubmitted June 28, 2011

Before: KOZINSKI, Chief Judge, B. FLETCHER and RAWLINSON, Circuit
Judges.

      Defendant Dean Russell Shelton appeals his conviction for possession of a

firearm and ammunition by a prohibited person in violation of 18 U.S.C. §

922(g)(1). The Government cross-appeals Shelton’s sentence. We have

jurisdiction under 28 U.S.C. § 1291.

      Shelton challenges his conviction on two grounds: 1) his motion to suppress

filed below was denied in error and 2) there was insufficient evidence presented at

trial to justify his conviction. We review a district court’s determination of a

motion to suppress as to issues of law de novo and as to its findings of fact for

clear error. United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005).

      On January 6, 2007, the police found a firearm in a vehicle registered to and

occupied by Shelton during a warrantless search. The police searched the vehicle

after arresting Shelton and his passenger and removing them from the vehicle. The

police found a handgun behind the panel of the driver-side inner door. Shelton

filed a motion to suppress, asserting in part that neither the initial stop of the

vehicle nor the subsequent search were justified. The district court denied the

motion, finding the search proper under the United States’s Supreme Court’s ruling


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in New York v. Belton, 453 U.S. 454, 460 (1981). At that time, we read Belton as

permitting a warrantless vehicle search incident to the arrest of an occupant of the

vehicle. See United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006)

(“Applying the Belton rule, we have held that a warrantless automobile search will

be valid if it is ‘roughly contemporaneous with the arrest.’” (quoting United States

v. Smith, 389 F.3d 944, 951 (9th Cir. 2004))).

      We stayed the current appeal pending the Supreme Court’s decision in

Arizona v. Gant, 129 S. Ct. 1710 (2009), reviewing the Arizona Supreme Court’s

holding that the broad reading of Belton taken by our and other courts was in error.

The Court affirmed the Arizona Supreme Court and announced as the rule

applicable to vehicle searches incident to arrest:

      Police may search a vehicle incident to a recent occupant’s arrest only
      if the arrestee is within reaching distance of the passenger
      compartment at the time of the search or it is reasonable to believe the
      vehicle contains evidence of the offense of arrest. When these
      justifications are absent, a search of an arrestee’s vehicle will be
      unreasonable unless police obtain a warrant or show that another
      exception to the warrant requirement applies.

Id. at 1723-24.

      The Government conceded that, applying the rule stated in Gant, the search

of Shelton’s vehicle was improper because Shelton was secured at the time of the

search. The Government, however, argued that the search was in good faith under


                                          3
the then-prevailing interpretation of Belton and that, therefore, the exclusionary

rule should not be applied. This argument was rejected in our opinion in United

States v. Gonzalez, 578 F.3d 1130, 1132–33 (9th Cir. 2009), reh'g en banc denied,

598 F.3d 1095 (9th Cir. 2010). We stayed the case a second time while the

Government’s sought certiorari in Gonzalez. Recently, the Court granted

certiorari, vacated the judgment and remanded Gonzalez for further consideration

in light of its recent opinion in Davis v. United States, 131 S. Ct. 2419 (2011).

United States v. Gonzalez, --- S.Ct. ----, 2011 WL 2518818 (June 27, 2011).

      In Davis, the Court held that the good-faith exception applies to searches

conducted in reliance on binding precedent:

            It is one thing for the criminal “to go free because the constable
      has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587
      (1926) (Cardozo, J.). It is quite another to set the criminal free
      because the constable has scrupulously adhered to governing law.
      Excluding evidence in such cases deters no police misconduct and
      imposes substantial social costs. We therefore hold that when the
      police conduct a search in objectively reasonable reliance on binding
      appellate precedent, the exclusionary rule does not apply.

Id. at 2434.

      Davis is dispositive of Shelton’s Fourth Amendment argument. We

therefore affirm the district court’s denial of the motion to suppress.




                                           4
      Shelton also challenges the sufficiency of the evidence that he knowingly

had possession of the handgun. See 18 U.S.C. § 922(g)(1); United States v. Nevils,

598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). Viewing the evidence in the light

most favorable to the prosecution, we conclude that “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The police

found the handgun in Shelton’s car, easily accessible behind a loose panel of the

driver-side inner door. Shelton occupied the driver’s seat prior to and at the time

of the arrest. Shelton claims that his passenger had been seen recently alone in the

car, but the accuracy of that testimony is questionable. In any event, a reasonable

jury could find that Shelton, and not his passenger, was in knowing possession of

the gun. See United States v. Merriweather, 777 F.2d 503, 505, 507 (9th Cir.1985)

(holding that the presence of a shotgun hidden in defendant’s car was sufficient to

show possession despite the fact that another person had access to the car), cert.

denied, 475 U.S. 1098 (1986). Shelton’s conviction is affirmed.

      Finally, we address the Government’s challenge to Shelton’s sentence. We

review the legality of a sentence de novo. United States v. Avila-Anguiano, 609

F.3d 1046, 1049 (9th Cir. 2010). We agree that the district court erred when it held

that, to be part of the sentencing calculus, prior convictions must be alleged in the


                                          5
indictment. See Almendarez–Torres v. United States, 523 U.S. 224, 243–47

(1998). We therefore reverse and remand for resentencing. On remand, the district

court should address Shelton’s argument that his prior convictions do not qualify

as predicate offenses under the Armed Career Criminal Act.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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