                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 27 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50107

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-00482-JAH-1
 v.

NOE RENE LUGO, AKA No-No, AKA                   MEMORANDUM*
Wolfie,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                      Argued and Submitted August 15, 2019
                              Pasadena, California

Before: CALLAHAN and CHRISTEN, Circuit Judges, and WU,** District Judge.

      Defendant-Appellant Noe Rene Lugo appeals his convictions and sentences

for one count of dealing in firearms pursuant to 18 U.S.C. § 922(a)(1)(A), and four

counts of felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g). He



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
contends that: (1) the district court plainly erred at trial in allowing improper expert

testimony from three law enforcement officers; and (2) it erred in failing to give a

jury instruction on separate acquisition or storage of the firearms as to his felon-in-

possession counts, resulting in multiplicitous convictions. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and VACATE Count 4 but

AFFIRM as to the remaining counts. In light of the partial vacatur, we REMAND

to the district court for re-sentencing.

      As to the expert testimony contention, Defendant did not object to that

testimony at trial, so we review for plain error. United States v. Gomez-Norena,

908 F.2d 497, 500 (9th Cir. 1990). We hold that the three law enforcement

officials were not testifying as experts because their testimony was based on their

personal involvement in the investigation. See United States v. Barragan, 871

F.3d 689, 704 (9th Cir. 2017). Therefore, the district court did not plainly err.

      Next, Plaintiff contests his convictions for Counts 3, 4, and 5 citing to: (1)

the district court’s failure to instruct the jury on separate acquisition or storage of

the weapons, (2) the duplicitous nature of the convictions, and (3) the lack of

sufficient evidence to sustain the convictions.1 Because Defendant failed to



1
  In its Opposition Brief, the United States requests that we vacate one of
Defendant’s felon-in-possession counts (Count 4) based on evidence in the record
that Defendant acquired or stored the weapons underlying Count 3 and Count 4 at
the same time.
challenge the instructions below or raise the Double Jeopardy issue, we review that

claim for plain error.2 See United States v. Kilbride, 584 F.3d 1240, 1247 (9th Cir.

2009). We review claims of insufficient evidence de novo. United States v.

Sandoval-Gonzalez, 642 F.3d 717, 727 (9th Cir. 2011).

      Under the plain error standard, we will affirm unless there has been: (1) an

error; (2) the error was plain; (3) the error affected substantial rights; and (4)

seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). To determine

whether the failure to give a jury instruction, even on an element of a charge,

seriously affected the fairness of the proceeding, courts analyze whether there was

“overwhelming” and “essentially uncontroverted” evidence that establishes the

omitted element. See, e.g., Johnson v. United States, 520 U.S. 461, 469-70 (1997);

United States v. Cotton, 535 U.S. 625, 632-33 (2002).

      In order to sustain multiple convictions of felon-in-possession, a jury must

find that the weapons charged in different counts were either stored or acquired

separately from one another. United States v. Szalkiewicz, 944 F.2d 653, 653 (9th

Cir. 1991) (per curiam) (“This court has held that only one offense is charged for


2
  Relying on United States v. Garcia, 37 F.3d 1359 (9th Cir. 1994), Defendant
argues that we should review his instructional error challenge de novo because it
relates to Defendant’s sentencing. Garcia is inapplicable here as it simply stands
for the premise that a district court has a duty to instruct the jury that it must
specify the object of a conspiracy charge. See Garcia, 37 F.3d at 1370.
possession of firearms by a felon, regardless of the number of firearms involved,

absent a showing that the firearms were stored or acquired at different times and

places.”). However, even in the absence of an instruction on separate acquisition

or storage, we find that there is overwhelming evidence of separate acquisition of

the weapons charged in Counts 3 and Counts 5. Because there is essentially

uncontroverted evidence of separate storage, Defendant’s Double Jeopardy and

insufficient evidence arguments also fail.3 On Count 4, we agree with the United

States’ request and VACATE Defendant’s conviction of that count.

      Despite the vacatur of Count 4, the United States urges us to affirm

Defendant’s sentence based on evidence in the record that the district court will

impose the same sentence. We instead follow the customary practice and remand

to allow the district court to consider the effect of the vacatur on Defendant’s

sentence. See United States v. Christensen, 828 F.3d 763, 821 (9th Cir. 2015), as

amended (July 8, 2016).

      VACATED as to Count 4; AFFIRMED as to the remaining counts; and

REMANDED.



3
  Defendant has pointed out that, during the pendency of this appeal, the Supreme
Court held that the United States must prove that a possessor of a firearm knew he
or she fell within one of the prohibited groups listed in 18 U.S.C. § 922(g). See
Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Defendant, however, is not
entitled to relief under Rehaif because the record is clear that he knew he was a
felon as per 18 U.S.C. § 922(g)(1) during the times he possessed the firearms.
