                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 05 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10142

              Plaintiff - Appellee,              D.C. No. 2:13-cr-01026-GMS-1

 v.
                                                 MEMORANDUM*
ALLEN RODERICK MANUEL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    G. Murray Snow, District Judge, Presiding

                       Argued and Submitted April 16, 2015
                            San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and RESTANI,** Judge.

      Defendant-Appellant Allen Roderick Manuel appeals his conviction for

being a felon in possession of ammunition under 18 U.S.C. § 924(a)(2). He

contends the district court erred in denying his motion to suppress because the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
officers lacked probable cause to arrest him. In addition, Manuel argues the

district court erred at trial by excluding certain out-of-court statements as hearsay.

Finally, he seeks to vacate the portion of his sentence imposing a special condition

on his supervised release.

      The officers had probable cause to arrest Manuel. Officers found an open

and cold bottle of alcohol under the front passenger seat of the truck where he was

sitting, and he had easy access to the bottle. This provided a “fair probability” that

Manuel was in possession of an open container of alcohol in violation of a local

ordinance. See Illinois v. Gates, 462 U.S. 213, 230–33, 238 (1983). The district

court therefore did not err in denying the motion to suppress.

      At trial, the district court rejected as hearsay the out-of-court statement of

the backseat passenger, claiming ownership of the gun found in the truck. Manuel

argues the statement should have been admitted for reasons other than for its truth,

but any error was harmless. See Fed. R. Evid. 801(c); United States v. Moran, 493

F.3d 1002, 1013–14 (9th Cir. 2007). There is little likelihood the statement could

have affected the jury’s determination that Manuel was in possession of the

ammunition in his pocket. See Moran, 493 F.3d at 1014.

      With respect to sentencing, Manuel contends the district court violated Fed.

R. Crim. P. 32 when it imposed a computer search condition on his supervised


                                           2
release without actually deciding whether he was a gang member. The district

court did not base the special condition on Manuel being a gang member, however.

The district court based the condition on the fact that records from both the

Arizona Department of Corrections and the Central Arizona Detention Center

indicated gang affiliations or associations. Because the district court did not base

the special search condition on the basis of gang membership, there was no

violation of Rule 32.

      AFFIRMED.




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