                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                             MAY 28 2014

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

UNITED STATES OF AMERICA,                        No. 13-30010

               Plaintiff - Appellee,             D.C. No. 3:11 cr-0424 -SI

  v.
                                                 MEMORANDUM*
TIMOTHY CHRISTOPHER GAINES,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                              Submitted May 16, 2014**
                                  Portland, Oregon

Before:        ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.

       Defendant Timothy Christopher Gaines appeals the district court’s order

denying his motion for a new trial. Gaines was convicted of being a felon in

possession of a firearm under 18 U.S.C. § 922(g)(1). Gaines contends that the


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
government committed prosecutorial misconduct by making a grammar-school

arithmetical error in its closing argument. We agree with the district court that the

misstatement did not prejudice Gaines’ trial, and affirm.

       We review for plain error claims of prosecutorial misconduct when the

defendant failed to object at trial. United States v. Washington, 462 F.3d 1124,

1136 (9th Cir. 2006). We review for abuse of discretion the district court’s denial

of a motion for a new trial. Id. at 1135. Under the plain error standard, Gaines is

entitled to relief only if the government’s statement was improper and

“substantially prejudice[d] [Gaines’s] trial.” United States v. Sanchez, 659 F.3d

1252, 1256 (9th Cir. 2011) (first alteration in original) (citation and internal

quotation marks omitted). Even then, we may “correct only particularly egregious

errors . . . that seriously affect the fairness, integrity or public reputation of judicial

proceedings.” Id. (citation and internal quotation marks omitted).

       The prosecutor’s mischaracterization of two 235-foot distances as two 40-

yard distances (instead of, correctly, as two 80-yard distances) was improper

because it was not “based on the evidence . . . [or] reasonable inferences from the

evidence.” United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002)

(quoting United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000)) (internal

quotation marks omitted). But the misstatement did not substantially prejudice


                                             2
Gaines. We agree with the district court that the misstatement was “simple

arithmetic that the jury was capable of reconstructing and correcting on its own.”

Moreover, the district court’s instructions to the jury reminded it, among other

things, that “statements, objections, and arguments by the lawyers are not

evidence.” Cf. United States v. Carrillo, 16 F.3d 1046, 1050-51 (9th Cir. 1994);

Tenorio v. United States, 390 F.2d 96, 98 (9th Cir. 1968). The improper statement

was not “crucial to the government’s case.” United States v. Kerr, 981 F.2d 1050,

1054 (9th Cir. 1992); see also Carrillo, 16 F.3d at 1051 (declining to find

prejudice where “the jury heard independent and far more persuasive evidence of

the same information”). And the statement was “but one of many [points] made in

closing.” United States v. Boulware, 470 F.3d 931, 937 (9th Cir. 2006), rev’d on

other grounds, 552 U.S. 421 (2008).

      We thus conclude that the government’s misstatement was not plain error.

The district did not abuse its discretion in denying Gaines’ motion for a new trial.

See United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).

Accordingly, the judgment of the district court is

      AFFIRMED.




                                          3
