                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             FEB 16 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 12-30326

               Plaintiff - Appellee,             D.C. No. 2:11-cr-02086-EFS-2

 v.
                                                 MEMORANDUM*
LASHAUN ROMAN NOSE,

               Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Edward F. Shea, Senior District Judge, Presiding

                            Submitted February 2, 2016**
                                Seattle, Washington

Before:        KOZINSKI, O’SCANNLAIN and GOULD, Circuit Judges.

      1. Roman Nose signed a pretrial stipulation indicating that he was “an

Indian as that term is used in 18 United States Code 1153.” Given that Roman

Nose admitted he was an Indian as defined by the statute, a “rational trier of fact


          *
          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).
                                                                                   page 2
could have found the [Indian status] element[] of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see 18 U.S.C. §§

113(a)(7), 1153 (charged offenses); see also United States v. Gwaltney, 790 F.2d

1378, 1386 (9th Cir. 1986) (discussing stipulations in criminal trials). Roman

Nose’s challenge to the sufficiency of the government’s evidence therefore fails.

Accordingly, so too does his jurisdictional challenge. See United States v. Ratigan,

351 F.3d 957, 963–64 (9th Cir. 2003) (explaining that “the jurisdictional element

of federal crimes does not present a pure question of the court’s subject-matter

jurisdiction” but rather one of sufficiency of the government’s evidence).


      2. Roman Nose has presented no evidence that the stipulation was not freely

or voluntarily given. We reject his argument that “the stipulation itself provides a

sufficient record to establish its involuntariness.” In the absence of any facts

suggesting that his admissions were coerced or involuntary, we cannot say that the

introduction of the stipulation was erroneous. See United States v. Molina, 596

F.3d 1166, 1169 (9th Cir. 2010).


      3. The district court did not abuse its discretion by admitting the coat

hangers and television wires as physical evidence. See United States v. Edwards,

235 F.3d 1173, 1178–79 (9th Cir. 2000); Chavira Gonzales v. United States, 314
                                                                                  page 3
F.2d 750, 752 (9th Cir. 1963). At trial, one witness testified that Roman Nose beat

the victim with hangers and wires, and another witness testified that the beatings

occurred in the back bedroom of the house. An FBI agent testified that she

discovered the hangers and wires in that bedroom. This testimony was sufficient to

lay foundation for the exhibits, establish their relevance and demonstrate their

probative value.


      4. The district court did not err by declining to instruct the jury on the crime

of “Assault by Striking, Beating, or Wounding.” This lesser offense is not

included within the charged offense of “Assault Resulting in Substantial Bodily

Injury” because it contains a conduct element that is not an element of the greater

offense. See United States v. Johnson, 637 F.2d 1224, 1242 n.26 (9th Cir. 1980)

(noting that “[a]ssault by striking, beating, or wounding . . . . contemplates some

form of contact . . . which, strictly speaking, is not required of assault resulting in

serious bodily injury”), abrogated on other grounds by Schmuck v. United States,

489 U.S. 705 (1989). For this reason, Roman Nose was not entitled to his

proposed instruction on the lesser offense. See United States v. Rivera-Alonzo,

584 F.3d 829, 832–33 (9th Cir. 2009).
                                                                                 page 4
      5. The sentence imposed by the district court was substantively reasonable.

See United States v. Valdavinos-Torres, 704 F.3d 679, 692 (9th Cir. 2012). The

fact that Perez received a lesser sentence for the same crime is of no moment.

Perez had a smaller role in the beatings and, unlike Roman Nose, she accepted

responsibility for her conduct. Moreover, the district judge paid adequate attention

to various factors that may have mitigated Roman Nose’s sentence. The district

judge expressly acknowledged that Roman Nose had experienced a difficult

childhood, but nonetheless concluded that the upward departure was justified by

his abhorrent conduct in this case.


      AFFIRMED.
