NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ERIC LONG, Defendant

- Appellant. No. 22

- 10351
D.C. No. 2:21

- cr - 00229

- GMN

- BNW

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Argued and Submitted December 6, 2023

Portland, Oregon Before: BERZON, NGUYEN, and MILLER, Circuit Judges. Eric Long pleaded guilty to being a felon in possession of a firearm , in violation of 18 U.S.C. § 922(g) (1)

. He was sentenced to 24 months of imprisonment, to be followed by three years of supervised release. He appeals , challenging (1) the district court’s application of a four

- level sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using the firearm in connection

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JAN 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

with a felony , (2) the substantive reasonableness of his sentence , and (3) the terms of a condition of supervised release requiring him to obtain mental

- health
treatment. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742

. We affirm in part, vacate in part, and remand.
W here, as here, a defendant preserved a challenge to the application of a sentencing enhancement , we review the district court’s factual findings for clear

error
. United States v. Hong , 938 F.3d 1040, 1051 (9th Cir. 2019) . We revi ew the substantive reasonableness of a sentence for abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009)

. Because Long did n ot challenge the mental

- health treatment condition before the district court, we review the legality of that condition for plain error. United States v. Nishida , 53 F.4th 1144, 1150 (9th Cir. 2022)

. 1. T he parties dispute whether the government needed to prove that the four

level enhancement applied by a preponderance of the evidence or by clear and convincing evidence

. See U nited States v. Lucas , 70 F.4th 1218, 1221 (9th Cir. 2023), vacated and reh ’

g en banc granted , 77 F.4th 1275 (9th Cir. 2023). We need not resolve that dispute because the district court did not clearly err in finding that
t he government met its burden under either standard. The government introduced ample evidence that Long committed a felony

— assault under Nevada law

— including a written statement from his former neighbor3

Dyeshune Hood, a recorded conversation between Hood and responding officers, and, in particular, a FaceTime recording that shows Long brandishing a handgun and advancing toward Hood

. Contrary to Long’s assertion s, the district court did
not err by considering Hood’s “unsworn” statement and the “ partial ” FaceTime recordin g
. “ T he Federal Rules of Evidence do not apply at a sentencing hearing,” and Hood’s statement was not unreliable simply because it was unsworn. U nited
States v. Christensen , 732 F.3d 1094, 1102 (9th Cir. 2013 ) ; see Fed. R. Evid. 1101(d)(3) ; U.S.S.G. § 6A1.3(a). Although the F aceTime recording did not capture the entire interaction , its contents corroborated Hood’s written statement and her testimony to police with regard to whether Long held a gun and advanced on her angrily

. See United States v. Petty , 982 F.2d 1365, 1369 (9th Cir. 1993) , amended , 992 F.2d 1015 (9th Cir. 1993) (holding that presumptively unreliable evidence can be come reliable when corroborated )

. Because corroborated statements are “sufficiently reliable even if such statements are self

- serving and contrary to the testimony of the defendant,” Latazsha Reese ’s conflicting statement also does not render either the FaceTime recording or Hood’s st atement unreliable

. U nited States v. Berry , 258 F.3d 971, 977 (9th Cir. 2001 ) ; see United States v. Jordan , 256 F.3d 922, 933 (9th Cir. 2001) (“[W]e are not in a position to weigh conflicting evidence, which is an important responsibility of the district court. ”). Long therefore fails to establish that the district court relied on false or unreliable information

. See U nited4

States v. Vanderwerfhorst , 576 F.3d 929, 935

– 37 (9th Cir. 2009)

. The district court’s finding that Long committed assault is not clear ly

erroneous
. As we have explained , the FaceTime recording and Hood’s multiple statements support that finding , which the court noted was based on “all the information” in the record. Thus, despite Long’s assertions, “ the record and context make clear that the judge ‘ considered the evidence and arguments, ’”
U nited States v. Carter , 560 F.3d 1107, 1119 (9th Cir. 2009) ( quoting Rita v.
U nited States , 551 U.S. 338, 340 (2007) ), such that she did not need to “ directly address each and every one of [them] .” U nited States v. Rangel , 697 F.3d 795, 806 (9th Cir. 2012)

. 2. Long’s sentence is substantively reasonable

. Long presented the district court with the same substantial medical concerns, family considerations, and criminal

- history arguments that he repeat s on appeal. The court considered th o se matters and the factors required under 18 U.S.C. § 3553(a) to impose a below

Guidelines sentence. We find no abuse of discretion.
3. The terms of Long’s Mental Health Treatment Supervised Release Condition are identical to the terms of the mental

- health treatment condition that

we held unconstitutional in Nishida

. 53 F.4th at 1155

– 56

. W e therefore vacate Long’s Mental Health Treatment Supervised Release Condition and remand “so that the district court can clarify the scope of authority delegated to the probation5

officer consistent with [ that decision ]

. ” Id

. AFFIRMED in part, VACATED in part, and REMANDED.