                                                                            FILED
                                                                             AUG 02 2013
                             NOT FOR PUBLICATION                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                      UNITED STATES COURT OF APPEALS

                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30089

                Plaintiff - Appellee,            D.C. No. 3:09-cr-05810-RBL-4

  v.
                                                 MEMORANDUM*
DANNY LEE SHERWOOD,

                Defendant - Appellant.


                     Appeal from the United States District Court
                       for the Western District of Washington
                     Ronald B. Leighton, District Judge, Presiding

                               Submitted June 7, 2013**
                                 Seattle, Washington

             Before: ALARCÓN, GILMAN***, and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
       Danny Lee Sherwood (“Sherwood”) appeals from the district court’s

judgment affirming his conviction for conspiracy to distribute oxycodone and

methadone, distribution of oxycodone, possession with intent to distribute

oxycodone, being a felon in possession of a firearm, and being a felon in

possession of ammunition.

       Pursuant to Anders v. California, 386 U.S. 738 (1967), Ronald D. Ness,

Sherwood’s appointed counsel at trial and in this appeal, has filed a motion to

withdraw as counsel of record. He asserts that there is no merit to Sherwood’s

appeal. In his motion, Mr. Ness identified four possible issues that arguably might

support Sherwood’s appeal, as required by Anders. Id. at 744. Mr. Ness asserts

that each issue lacks merit. We agree.

                                             I

       When an attorney files an Anders brief, an appellate court is required to

conduct “a full examination of all the proceedings, to decide whether the case is

wholly frivolous.” Id. This Court has examined the reporter’s transcript of the

trial, the district court’s evidentiary rulings, its instructions to the jury, and the

sentencing transcript. We have determined that none of the following legal points

set forth by Mr. Ness are “arguable on their merits.” Id. Further, our independent




                                             2
review of the record, pursuant to Penson v. Ohio, 488 U.S. 75, 83 (1988), discloses

no other grounds for relief.

      The prosecution submitted the personnel file of a potential witness, law

enforcement officer Estevan Sanchez, for an in camera inspection, as required by

United States v. Henthorn, 931 F.3d 29, 30–31 (9th Cir. 1990). After inspecting

the personnel file, the district court ordered that the prosecution produce the file to

defense counsel. The court also issued a protective order limiting the disclosure of

the material contained in the file. The record demonstrates that the prosecution and

the district court faithfully complied with this Court’s decision in Henthorn.

      At trial, defense counsel challenged the admissibility of the proposed

testimony of Officer Sanchez and related demonstrative Microsoft Power Point

slides on the ground that they were not relevant. The prosecution informed the

court that the purpose of Officer Sanchez’s testimony and the presentation of the

Power Point slides “is that you cannot sell these drugs outside of the closed system,

and we have a closed system because these drugs are highly subjected to abuse.”

The district court overruled defense counsel’s objection to Officer Sanchez’s

testimony and related Power Point slides. Officer Sanchez was not called as a

witness nor is there any indication that the Power Point evidence was presented to




                                           3
the jury by any witness. Accordingly, the district court’s ruling on the proposed

testimony of Officer Sanchez did not result in any error.

      The district court denied Sherwood’s request to instruct the jury on the

definition of the term “in furtherance of a crime” as set forth in Requested

Instruction No. 3. The jury acquitted Sherwood of Count 32, which charged him

with possession of two firearms in furtherance of a drug trafficking crime.

Therefore, whether the district court erred in rejecting Sherwood’s proposed

instruction is moot.

      The record shows that the district court denied Sherwood’s motion to

dismiss Counts 33 and 34 of the indictment, which charged him with possession of

a firearm and ammunition that had traveled through interstate commerce. In

support of this motion, defense counsel argued that the prosecution had failed to

present evidence that Sherwood was involved in shipping or transporting a firearm

or ammunition through interstate commerce. In Barrett v. United States, 423 U.S.

212 (1976), the Supreme Court held that 18 U.S.C. § 922(h) does not require the

prosecution to prove that the defendant transported a firearm in interstate

commerce. Id. at 225. A person is guilty of that crime if he receives a firearm that

previously was shipped or transported in interstate commerce by anyone. Id. at




                                          4
216–17. Therefore, the district court did not err in rejecting Sherwood’s motion to

dismiss Counts 33 and 34.

                                          II

       Sherwood’s theory of defense at trial was that the evidence was insufficient

to persuade a rational trier of fact that he was guilty beyond a reasonable doubt of

conspiracy to distribute oxycodone and methadone. The evidence adduced at trial

included three controlled buys from Sherwood by government agents for

oxycodone pills. Agents also recovered a large amount of cash, a firearm, and

ammunition from Sherwood’s residence. None of this evidence was challenged on

appeal. When viewed in the light most favorable to the prosecution, this evidence

is sufficient to demonstrate that a rational trier of fact could have found Sherwood

guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(“[T] he relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”) (emphasis in

original)).

                                     Conclusion

       Based on our independent review of the record, we find “no nonfrivolous

issue for appeal.” Penson, 488 U.S. at 80. In an order filed on May 22, 2013, we


                                          5
instructed Sherwood that he could file a pro se supplemental brief in support of his

appeal by July 1, 2013. He has failed to do so.

      Mr. Ness’s motion to withdraw is GRANTED.

      The district court’s judgment of conviction is AFFIRMED.




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