                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 29 2010

                                                                          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.
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 issues of fact for clear

error. United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005). We hold that the

district court committed an error of law in denying Shelton’s motion to suppress,

thereby requiring reversal of his conviction. As we hold that this error requires

reversal of his conviction, we do not reach Shelton’s insufficient evidence ground

for reversal and deny the Government’s cross appeal as moot.

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

occupied by Shelton during a warrantless search. The search of Shelton’s vehicle

followed his and his co-occupant’s arrest and removal from the vehicle for refusal

to cooperate and for an outstanding arrest warrant, respectively. The police found

a handgun behind the driver-side inner door panel. 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 in pertinent

part. The district court found the search proper under the United States’s Supreme

Court’s ruling 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 concedes 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’s sole argument against suppression of the fruits of the

search and reversal of Shelton’s conviction is its assertion that the search was in

good faith under the then-prevailing interpretation of Belton and that, therefore, the

exclusionary rule should not be applied. This argument was rejected in our recent

opinion in United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir. 2009),

reh’g en banc denied, __ F.3d __, 2010 WL 917204 (9th Cir. Mar. 16, 2010). We

therefore hold that evidence derived from the search at issue must be suppressed

and reverse Shelton’s conviction.

      REVERSED AND REMANDED.
