                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-30269

                Plaintiff-Appellee,             D.C. No. 6:11-cr-60062-AA-1

 v.
                                                MEMORANDUM*
THOMAS WILLIAM CORNELIUS, Jr.,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    15-30270

                Plaintiff-Appellee,             D.C. No. 6:13-cr-00135-AA-1

 v.

THOMAS WILLIAM CORNELIUS, Jr.,

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    15-30271

                Plaintiff-Appellee,             D.C. No. 6:13-cr-00545-AA-1

 v.

THOMAS WILLIAM CORNELIUS, Jr.,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                Defendant-Appellant.

                  Appeals from the United States District Court
                            for the District of Oregon
                    Ann L. Aiken, District Judge, Presiding

                        Argued and Submitted June 8, 2017
                                Portland, Oregon

Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.

      In these consolidated appeals, Thomas Cornelius, Jr. challenges his

convictions for being a felon in possession of a firearm and sentences from assaults

he committed in prison on July 5, 2012, and August 18, 2013. We have

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

Case No. 15-30269

      1.    The district court did not err in denying Cornelius’s motion to

suppress evidence found in his car during a traffic stop on May 3, 2011. Trooper

Gardiner did not unreasonably prolong Cornelius’s stop by refusing to release

Cornelius until after she administered sobriety tests on Holm. At the time when

Gardiner began administering those sobriety tests, she reasonably suspected that

Cornelius and Holm had been speed racing and that Cornelius was not in lawful

possession of the car he was driving. See United States v. Mayo, 394 F.3d 1271,

1276 (9th Cir. 2005).

      2.    The district court did not abuse its discretion in refusing to reopen its


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denial of Cornelius’s suppression motion. The “newly-discovered” video clip

would have had no impact on the district court’s conclusion that objective

reasonable suspicion justified the duration of Cornelius’s traffic stop. Moreover,

Cornelius offered no evidence that he could not access the newly-discovered video

clip when he filed the suppression motion. See Frederick S. Wyle Prof’l Corp. v.

Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985).

      3.      The district court did not abuse its discretion in denying Cornelius’s

motion for a mistrial. The information revealed to the jury about Cornelius’s prior

conviction did not prevent the jury from reaching an impartial verdict. See United

States v. Escalante, 637 F.2d 1197, 1202 (9th Cir. 1980).

Case No. 15-30270

      4.     The district court abused its discretion in imposing a two-level

enhancement under United States Sentencing Guideline (USSG) § 3A1.1(b)(1).

While the victim was in a confined area at the time of Cornelius’s attack, there was

no evidence that the victim was less able to resist than a typical prisoner victim.

See United States v. Castaneda, 239 F.3d 978, 980 (9th Cir. 2001).

      Nonetheless, this error was harmless. In sentencing Cornelius for all three

of these cases, the district court used USSG § 3D1.4 to calculate a “combined total

offense level.” The district court calculated the offense levels for each “group” of

closely-related counts under § 3D1.3 to be 30 (Case No. 15-30269 Group), 27



                                          3
(Case No. 15-30270 Group), and 38 (Case No. 15-30271 Group). Because the

Case No. 15-30270 Group had an offense level that was eleven levels “less

serious” than the highest offense level group, the Case No. 15-30270 Group had no

effect on Cornelius’s combined total offense level. See USSG § 3D1.4(c)

(“Disregard any Group that is 9 or more levels less serious than the Group with the

highest offense level.”). As a result, Cornelius’s combined offense level would

have been exactly the same even if the district court did not impose the two-level

vulnerable-victim enhancement. The district court’s error was therefore harmless.

See United States v. Cantrell, 433 F.3d 1269, 1280 n.4 (9th Cir. 2006).

Case No. 15-30271

      5.     The district court did not abuse its discretion in imposing a three-level

enhancement under USSG § 2A2.1(b)(1)(C) because the victim’s injuries in this

case lay somewhere between “serious” and “permanent or life-threatening.” The

emergency medical technician who treated the victim testified that, based on the

amount of blood the victim lost, it was possible that the victim could have died.

See United States v. Hinton, 31 F.3d 817, 825–26 (9th Cir. 1994).

      AFFIRMED.




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