                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 17 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10403

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00914-FRZ-
                                                 JCG-2
  v.

PANCHO JOSEPH GARCIA,                            MEMORANDUM *

              Defendant - Appellant.




                   Appeal from the United States District Court
                            for the District of Arizona
                 Frank R. Zapata, Senior District Judge, Presiding

                        Argued and Submitted May 6, 2013
                            San Francisco, California


Before: W. FLETCHER, GOULD, and CHRISTEN, Circuit Judges.

       Defendant-Appellant Pancho Garcia challenges his convictions in violation

of 18 U.S.C. § 1153(a) (offenses committed within Indian country) for two counts

of Assault with a Dangerous Weapon with Intent to do Bodily Harm under 18



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 113(a)(3) and one count of Use of a Firearm During and in Relation to a

Crime of Violence under 18 U.S.C. § 924(c)(1)(A)(iii). Garcia challenges the

admission of law enforcement expert testimony, the sufficiency of the evidence,

the denial of justification and mistake jury instructions, and the imposition of the §

924(c) sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

       a.     Expert Testimony

       Garcia challenges the admission of law enforcement expert testimony as

irrelevant. We review a district court’s decision to admit or exclude evidence for

abuse of discretion. United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.

2000); see also United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir. 2010)

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

We only find that a district court abused its discretion if, despite applying the

correct legal rule, the district court’s application of the rule was illogical,

implausible, or without support in inferences that may be drawn from facts in the

record. Redlightning, 624 F.3d at 1110. And we may only reverse for an abuse of

discretion where such a nonconstitutional error more likely than not affected the

verdict. Edwards, 235 F.3d at 1178. Here, any error in admitting the expert

testimony on typical burglaries was harmless.


                                             2
      b.     Sufficiency of the Evidence

      Garcia claims there was insufficient evidence for the jury to find that he

intended to harm the victims. We review de novo the denial of a Rule 29 motion

for acquittal. United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994). “There

is sufficient evidence to support a conviction if, reviewing the evidence in the light

most favorable to the Government, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v.

Lopez-Patino, 391 F.3d 1034, 1038 (9th Cir. 2004) (quoting United States v.

Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997)). Evidence at trial, including

Garcia’s testimony that he fired a gun at the car in which the victims were riding,

provided a sufficient basis for the jury to convict Garcia.

      c.     Jury Instructions

      Garcia challenges the district court’s refusal to give his requested

justification and mistake-of-fact jury instructions. We review the denial of a

proposed jury instruction for an abuse of discretion. United States v. Heredia, 483

F.3d 913, 921 (9th Cir. 2007). Garcia was not entitled to a justification instruction

because he can provide no legal rule that would justify his conduct. Garcia was not

entitled to a mistake-of-fact instruction because none of the alleged mistakes of




                                           3
fact negated his culpability; even if the facts had been as he claimed to believe,

Garcia still could have been found guilty of the offense.

      d.     Double Jeopardy

      Because Garcia did not object below, we review for plain error. United

States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007). Garcia’s double jeopardy

argument fails because Sections 924(c)(1)(A)(iii) and 113(a)(3) each require proof

of at least one fact that the other does not. See United States v. Gonzalez, 800 F.2d

895, 897-98 (9th Cir. 1986). Garcia’s legislative intent argument fails. See S. Rep.

No. 98-225, at 313 n.8 (1984).


      AFFIRMED.




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