                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           FEB 15 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10270

              Plaintiff-Appellee,                D.C. No.
                                                 1:15-cr-00243-JMS-1
 v.

AARON MUNGIT HU,                                 MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    J. Michael Seabright, Chief Judge, Presiding

                          Submitted February 13, 2018**
                               Honolulu, Hawaii

Before: O’SCANNLAIN, CLIFTON, and IKUTA, Circuit Judges.

      Aaron Mungit Hu challenges his conviction for possession of

methamphetamine and heroin with intent to distribute within 1000 feet of an




      *
             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).
elementary school. See 21 U.S.C. §§ 841(a)(1), 860(a). Because the facts are

known to the parties, we repeat them only as necessary to explain our decision.

                                           I

      Viewed in the light most favorable to the government, the evidence

presented at trial was sufficient to allow a rational juror to find that Hu’s crime was

committed within 1000 feet of an elementary school. See United States v. Johnson,

874 F.3d 1078, 1080 & n.2 (9th Cir. 2017) (standard for reviewing sufficiency of

the evidence). Agent Dituro testified that his second measurement was shorter

than the first because he intentionally walked a more direct path to the school the

second time. A rational juror could have credited Dituro’s explanation and

accepted his second measurement as accurate. Further, the slight inaccuracy of the

measuring wheel over the course of a 400-meter span does not undermine Dituro’s

measurements. Even if five feet were added to Dituro’s second measurement, the

distance between the arrest site and the school would still be less than 1000 feet.

Finally, with or without reference to the triangle theorem of inequality, a rational

juror could have concluded that the straight-line distance between the school and




                                           2
the arrest site would have been even shorter than the indirect path that Dituro

measured.1

                                          II

      The district court’s decision to give a lesser-included instruction did not

conclusively determine that the evidence was insufficient to support the 1000-foot

element of Hu’s crime. To give the instruction, the court was simply required to

conclude that a rational juror could find that Hu was guilty of the lesser offense but

not the greater—i.e., that a juror could rationally find that Hu possessed the drugs

with the intent to distribute them, but that he did so more than 1000 feet from the

school. See United States v. Crowe, 563 F.3d 969, 972 (9th Cir. 2009). The

court’s observation that a rational juror could have found in Hu’s favor on the

1000-foot element does not show that the evidence was insufficient to support the

jury’s actual finding in favor of the government.

      AFFIRMED.




      1
         The relevant distance for the statute is “a straight line measurement” rather
than “any ‘pedestrian’ route of travel.” United States v. Watson, 887 F.2d 980, 981
(9th Cir. 1989).
                                          3
