                                                                             FILED
                            NOT FOR PUBLICATION                              JAN 23 2017

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10226

              Plaintiff-Appellee,                D.C. No. 2:14-cr-00267-GEB

 v.
                                                 MEMORANDUM*
TERRANCE J. CRUZ,

              Defendant-Appellant,


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Garland E. Burrell Jr., District Judge, Presiding

                           Submitted January 18, 2017**

Before:      TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

      Terrance J. Cruz appeals from the district court order affirming his

conviction and sentence after a bench trial before a magistrate judge for violating

the terms of a special use permit, in violation of 16 U.S.C. § 551 and 36 C.F.R.

§ 261.10(l). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Cruz contends that there was insufficient evidence for the magistrate judge

to find that he violated two conditions of his special use permit. The permit, which

authorized Cruz to collect pine cones from Eldorado National Forest, included

conditions that (1) the permit “must be in the Permittee’s possession while

harvesting and transporting products,” and “[c]opies are not allowed;” and (2) the

permit is “nontransferable.” In light of Cruz’s admission that he provided

photocopies of the permit to multiple individuals so that they could collect pine

cones outside of his presence, the district court correctly determined that sufficient

evidence supports Cruz’s conviction. See 36 C.F.R. § 261.10(l); United States v.

Nevils, 598 F.3d 1158, 1164-65 (9th Cir. 2010) (en banc). Cruz’s argument

regarding the rule of lenity is unavailing because there is no “grievous ambiguity

or uncertainty” in the conditions of the permit. See Barber v. Thomas, 560 U.S.

474, 488 (2010).

      Furthermore, because “a reasonable person of ordinary intelligence” would

understand that Cruz’s conduct was prohibited by the conditions regarding

possession, photocopying, and transferability of the permit, the permit is not

unconstitutionally vague. See United States v. Weitzenhoff, 35 F.3d 1275, 1289

(9th Cir. 1993).

      Finally, Cruz argues that the magistrate judge ran afoul of Federal Rule of


                                           2                                     15-10226
Criminal Procedure 32 by announcing Cruz’s sentence before he was given an

opportunity to allocute. The record demonstrates, however, that the magistrate

judge gave Cruz an opportunity to address the court prior to imposing a final

sentence, thus complying with the requirements of Rule 32. See United States v.

Laverne, 963 F.2d 235, 237 (9th Cir. 1992) (no violation where the “court was able

to consider the defendant’s statement and was free to alter its view of the sentence

if the defendant offered a sufficient reason for changing its view”).

      AFFIRMED.




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