                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JUL 27 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 11-10276

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00669-WHA-1

  v.
                                                 MEMORANDUM *
DARIUS JORDAN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                         Argued & Submitted July 18, 2012
                             San Francisco, California

Before: CLIFTON and MURGUIA, Circuit Judges, and COLLINS, District
Judge.**

       Appellant Darius Jordan appeals following his jury conviction for illegally

possessing a firearm in violation of 18 U.S.C. § 922(g)(1). Jordan argues that the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
district court erred in denying his claim under Batson v. Kentucky, 476 U.S. 79

(1986), that the prosecutor used a peremptory challenge in a discriminatory manner

by striking G.B., an African-American prospective juror, on account of her race.

Jordan also argues that the district court committed procedural error by incorrectly

calculating the applicable United States Sentencing Guidelines range when

sentencing him to a 63-month term of imprisonment.

      We affirm the denial of Jordan’s Batson challenge because Jordan has not

“shown purposeful discrimination” at the third step of Batson under either the clear

error or de novo standards of review. Miller-El v. Cockrell, 537 U.S. 322, 329

(2003); see also United States v. Collins, 551 F.3d 914, 919 (9th Cir. 2009)

(explaining that the standard of review for a Batson claim may be de novo, as

opposed to clear error, where the trial court applies the incorrect legal standard).

For example, the record supports the contention that G.B.’s cough was disruptive

and we must defer to the district court’s firsthand observations of G.B.’s cough

under either standard of review. See Tolbert v. Page, 182 F.3d 677, 683-84 (9th

Cir. 1999) (“An appellate court can read a transcript of the voir dire, but it is not

privy to the unspoken atmosphere of the trial court—the nuance, demeanor, body

language, expression and gestures of the various players.”).




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      Jordan also appeals the district court’s application of a two-level upward

adjustment to his offense level for reckless endangerment during flight, per

U.S.S.G. § 3C1.2. We reject Jordan’s argument that in order for the § 3C1.2

enhancement to apply to the act of discarding a weapon, the prosecution must point

to specific people who were present at the time and place where the weapon was

discarded. Although there was no evidence that anyone ever entered the dirt patch

where the gun was found, the patch could be accessed by climbing over a low wall.

See United States v. Lard, 327 F.3d 551, 553 (7th Cir. 2003) (stating that the

accessibility of the location where a weapon was discarded may justify § 3C1.2

enhancement). Furthermore, the dirt patch was located within the courtyard of a

densely populated housing development. Based on these factors, we cannot

conclude that the district court erred in applying the § 3C1.2 enhancement to

Jordan’s offense level.

      AFFIRMED.




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