                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 25 2015

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

UNITED STATES OF AMERICA,                        No. 13-10634

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00290-GMS-1

  v.
                                                 MEMORANDUM*
JESSE QUINN HARRISON,

              Defendant - Appellant.


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

                      Argued and Submitted March 11, 2015
                           San Francisco, California

Before: BERZON, BYBEE, and OWENS, Circuit Judges.

       Jesse Quinn Harrison appeals his conviction for two counts of making

threats against the President of the United States in violation of 18 U.S.C. § 871,




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and the fifteen-month sentence imposed thereon. We affirm in part and dismiss in

part.1

         1. Harrison argues that the district court plainly erred in permitting the

prosecutor, without objection from defense counsel, to mischaracterize the

subjective intent element of the crime in her closing argument. We conclude the

prosecutor did not misstate the law. Even if she had, Harrison is unable to show

the prejudice required for reversal. See United States v. Begay, 673 F.3d 1038,

1046-47 (9th Cir. 2011) (en banc). The prosecutor’s alleged misstatements were

preceded by correct statements of law, both by the court in the jury instructions and

by the prosecutor in her closing argument, and followed by correct statements of

law by the prosecutor and defense counsel in their respective closing arguments.

See id. at 1046; United States v. Medina Casteneda, 511 F.3d 1246, 1249-50 (9th

Cir. 2008) (no plain error where the jury instructions properly defined the relevant

law and no other evidence overcame the presumption that the jury accepts the law

as stated by the court). The fact that prior juries had failed to convict Harrison on

these charges does not convince us to conclude otherwise. See United States v.




         1
             The government’s motion to strike Harrison’s errata to his opening brief is
denied.

                                              2                                   13-10634
Powell, 469 U.S. 57, 65 (1984). Contra United States v. Schuler, 813 F.2d 978,

982 (9th Cir. 1987).

         2. The district court did not abuse its discretion in admitting evidence of

uncharged, dismissed, or acquitted threats under Rule 404(b). The prior acts were

probative of Harrison’s intent and motive, and that probative value outweighed any

risk of unfair prejudice to Harrison, particularly in light of the limiting instructions

given.

         3. The district court did not err in imposing a two-level sentencing

enhancement because “the offense involved more than two threats.” U.S.

Sentencing Guidelines Manual (U.S.S.G.) § 2A6.1(b)(2)(A) (2013). Contrary to

Harrison’s argument, the Guideline does not require the district court to

specifically find that prior threats are “relevant conduct” under U.S.S.G. § 1B1.3

prior to applying the enhancement. Prior threatening acts may be considered so

long as they have a substantial and direct connection to the offense. U.S.S.G.

§ 2A6.1 cmt. n.1; see United States v. Neal, 776 F.3d 645, 660 (9th Cir. 2015).

The record shows at least two threats beyond those for which Harrison was

convicted that had a substantial and direct connection to the offenses of conviction.




                                             3                                    13-10634
      4. Harrison acknowledges that his appeal is moot insofar as it challenges a

particular condition of supervised release imposed in his original sentence, and

which no longer applies.

      As to Harrison’s challenge to the condition of supervised release that no

longer applies, the appeal is DISMISSED. In all other respects, the conviction and

sentence are AFFIRMED.




                                         4                                   13-10634
