NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS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

Plaintiff

- Appellee,

v. NELSON RAY MCKEE,

Defendant

- Appellant. No. 17

- 10244
D.C. No. 3:15

- cr - 00007

- RCJ

- VPC

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding Argued and Submitted October 16, 2018 San Francisco, California Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and LASNIK, ** District Judge. Nelson Ray McKee appeals his jury conviction for voluntary manslaughter within Indian Country in the stabbing of his wife, Cheryl Jackson McKee (“Jackson”), on December 31, 2014. At the outset, the district court denied in part

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

- 3.

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 

# FILED

NOV 20 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 17

- 10244

M cKee’s motion to suppress certain evidence as having been obtained in violation of his Fourth Amendment rights. In the course of the trial, the district court also excluded portions of the testimony of a witness, Lekeisha Crutcher, and McKee’s expert, Lawr ence Lee Renner. McKee received a 120

- month sentence, one year above the range indicated in the Guidelines issued by the United States Sentencing Commission. On appeal, he challenges these three rulings and the upward variance in his sentence. We have juri sdiction under 18 U.S.C § 1153, and we affirm.
1. Denial of Motion to Suppress Evidence The government has the burden of proving that consent was given to a warrantless search. United States v. A rreguin , 735 F.3d 1168, 1174 (9th Cir. 2013) (citing United States v. Welch , 4 F.3d 761, 764 (9th Cir. 1993) )

. “On appeal, evidence regarding the question of consent must be viewed in the light most favorable to the fact

- finder’s decision.” United States v. Patayan Soriano , 361 F.3d 494, 501 (9th Cir. 2004) ( quotin g United States v. Kaplan , 895 F.2d 618, 622 (9th Cir.1990))

. We first review the district court’s underlying factual findings for clear

error. United States v. Lara , 815 F.3d 605, 608

– 09 (9th Cir. 2016) (citing United States v. Mayer , 560 F.3d 948, 956 (9th Cir. 2009))

. T he district court concluded that McKee “likely orally consented” to the entry. This finding is not clearly

erroneous.3 17

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We review de novo the denial of a motion to suppress evidence. Lara , 815 F.3d at 608

– 09 (citing Mayer , 560 F.3d at 956 )

. Consent to a warrantless search and seizure must be “ unequivocal and specific and freely and intelligently given. There must be convincing evidence that [a] defendant has waived his rights. There must be clear and positive testimony.” United States v. S haibu , 920 F.2d 1423,
1426 (9th Cir. 1990) (internal quotation marks omitted) ( quoting United States v. Page , 302 F.2d 81, 83

– 84 (9th Cir. 1962)). The finding that McKee orally consented to the entry meets this threshold. The court therefore did not err in denying the motion.
2. Exclusion of Present Sense Impression Testimony At trial, Lekeisha Crutcher (“Lekeisha”) was prevented fro m testifying that she heard Brittany Abel say, “I see a van leaving up Hazard Road

. ” The parties agree that the district court er red in excluding this testimony. We therefore review for harmless error. United States v. Morales , 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc) (citing United States v. Rahm , 993 F.2d 1405, 1414 (9th Cir. 1993) ). We reverse unless “ it is more probable than not that the error did not materially affect the verdict.” Id

. ( citing United States v. Crosby , 75 F.3d 1343, 1349 (9th Cir.1996) ). We a ffirm, because t he excluded testimony came in later through Lekeisha’s husband, Chad Crutcher

. He testified that he heard Abel say , “Well, who’s that? Who’s that leaving . . . down the road?” He also testified that he saw4 17

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the van himself.
3. Exclusion of Expert Testimony We review the admission or exclusion of expert testimony for an abuse of discreti on. Earp v. Cullen , 623 F .3d 1065, 1075 (9th Cir. 2010) (citing United
States v. W.R. Grace , 504 F.3d 745, 759 (9th Cir. 2007) )

. First, Renner was asked to analyze Jackson’s injuries, and the use of a knife to inflict them, as they pertained to the likelih ood of a suicide versus a homicide

. The court interrupted , stating that the testimony had ventured into a manner

- of

death determination. This exclusion was not an abuse of discretion. On voir dire, Renner testified that he had never acted as a forensic pathologist or a coroner and had no experience with mann er - of

- death determinations. He was accepted as an expert only for crime scene interpretation and reconstruction and blood pattern identification

. Second , Renner was asked whether “the location of the [two] knives at the same spot as the notes” was significant. He responded, “ i t’s less likely that you had two individuals who would assault somebody and then lay the knives both down close together on a table. It wou ld be more consistent with a suicide

- type situation.” This is the answer that the district court struck , stating that an appropriate foundation as to the location of the knives had not yet been established, that Renner was not offered as an expert on manne r of death determinations, and5 17

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that Renner was being impermissibly asked whether the scene was more consistent with a suicide versus a homicide. The district court then clarified that Renner could be directed to testi fy regarding where the knives were foun d , but that he could not be asked whether that made a suicide less likely. This was an error. E xpert opinions on ultimate issues are generally permissible. Fed. R. Evid. 704 (a) ; Morales , 108 F.3d at 1035

. And t he location of the two bloody knives falls within the scope of Renner’s expertise in crime scene reconstruction. The error , however, was harmless. T he defense’s alternative theory concerning multiple unknown assailants was never substantially advanced.
W hether there was one assailant or two does not necessarily affect the assessment of McKee’s guilt. Moreover, the extensive remainder of Renner’s testimony on the likelihood of a suicide was admitted.
4. Upward Variance in Sentence We review the imposition of a sent ence for an a buse of discretion in t wo steps. First, we determine whether the district court committed procedural error. Second, we consider the substantive reasonableness of the sentence. United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (citing Gall v. United States , 552 U.S. 38, 51 (2007)

. There was no procedural error. McKee’s Fifth Amendment rights were not violated. The district court was entitled to take the lack of remorse6 17

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evidenced by McKee’s statement into consider ation in imposing the sentence. United States v. Hull , 792 F .2d 941, 943 (9th Cir. 1986 ) (per curiam) . The sentence
was not imposed to promote McKee’s rehabilitation. Tapia v. United States , 564
U.S. 319 , 334 (2011)

. In the totality of the circumstances, the sentence was substantively reasonable. Carty , 520 F.3d at 993 (citing Gall , 552 U.S. at 51)

. AFFIRMED

.