NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

SHANE ARNOLD, AKA Shay Arnaldi, 

AKA Alexander Arnold, AKA Shane 

Enrique Arnold, AKA Shane Eric Arnold, 

AKA Shay,

Defendant-Appellant.

No. 19-50033

D.C. No. 

2:17-cr-00044-MWF-2

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Submitted November 20, 2020**

Pasadena, California

Before: CALLAHAN and BUMATAY, Circuit Judges, and PRESNELL,***

District Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Panel unanimously concludes that this case is suitable for 

decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Gregory A. Presnell, United States District Judge for 

the Middle District of Florida, sitting by designation.

FILED

NOV 25 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-50033

Shane Arnold appeals his conviction following a bench trial for two heroindistribution charges under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) and for 

being in possession of a firearm with ammunition after a domestic-violence 

misdemeanor conviction in violation of 18 U.S.C. § 922(g)(9). Arnold also appeals 

his sentence. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, 

and we affirm.

I. Arnold’s Motion to Suppress

Arnold challenges the district court’s denial of his motion to suppress 

evidence seized under the search warrant executed on a converted garage on South 

Wilton Place in Los Angeles, California. We review a district court’s denial of a 

motion to suppress relating to a search warrant de novo. United States v. Jordan, 

291 F.3d 1091, 1099 (9th Cir. 2002). We review for clear error a district court’s 

underlying factual findings relating to a motion to suppress, such as “whether any 

statements were false or omitted and whether any such statements were 

intentionally or recklessly made.” United States v. Elliot, 322 F.3d 710, 714 (9th 

Cir. 2003). 

The Fourth Amendment requires that a search warrant be supported by a 

truthful factual showing sufficient to comprise probable cause. Franks v. 

Delaware, 438 U.S. 154, 164–65 (1978). Arnold argues that evidence seized via 

the Wilton search warrant must be suppressed under Franks because the affidavit 
3 19-50033

supporting the warrant contained material misrepresentations and omissions. To 

suppress evidence under Franks, a defendant must establish that “the affiant officer 

intentionally or recklessly made false or misleading statements or omissions in 

support of the warrant” and that, after removing the misstatements and 

supplementing the omissions, “the affidavit’s remaining content is insufficient to 

establish probable cause.”1 United States v. Martinez-Garcia, 397 F.3d 1205, 1215

(9th Cir. 2005) (quoting Franks, 438 U.S. at 155–56).

Arnold first argues that Detective Marc Tarzia misstated his observations 

from his surveillance of a drug transaction described in the affidavit. Arnold’s 

arguments during his Franks hearing and in his trial briefs all pertain to alleged 

misstatements by Detective Anthony Chavez and his asserted omissions. Arnold 

did not argue below that Detective Tarzia made any misrepresentations and the 

district court did not consider or address that issue. A defendant who raises new 

theories on appeal in support of a motion to suppress must demonstrate good cause 

before he or she is permitted to proceed on those theories. United States v. 

Guerrero, 921 F.3d 895, 897–98 (9th Cir. 2019). Because Arnold has not argued

good cause, his argument with respect to Detective Tarzia cannot succeed. Further, 

1 When considering a motion to suppress under Franks, this Court reviews both 

whether any misstatement or omission is material and whether probable cause 

exists following correction of such a misstatement or omission de novo. Elliot, 322 

F.3d at 714.
4 19-50033

even in absence of waiver, there were many indicators apart from Detective 

Tarzia’s observation that evidence of a crime would be found at the Wilton garage 

sufficient to establish probable cause. These included the fact that a confidential 

informant met with Arnold several different times at the garage to discuss the sale 

of drugs, and that the informant was given sample drugs at some of those meetings.

The only remaining Franks argument is Arnold’s assertion that the Wiltonwarrant affidavit omitted the fact that no drug seizures or arrests had been made in 

connection with the Wilton address. When reviewing omissions, a court must 

determine whether the omitted facts were “required to prevent technically true 

statements in the affidavit from being misleading.” United States v. Ruiz, 758 F.3d 

1144, 1148 (9th Cir. 2014) (quoting Ewing v. City of Stockton, 588 F.3d 1218, 

1224 (9th Cir. 2009)).

The only statement in the affidavit that Arnold argues is misleading is that 

the confidential informant had “led to multiple Title III affidavits and multiple 

narcotics seizures.” Arnold asserts that by omitting that none of these seizures 

occurred at the Wilton address, law enforcement implied that it had confirmed the 

presence of drugs at the Wilton address, when in fact it had not. But this is the very 

reason officers needed a search warrant—to obtain such evidence. The affidavit 

otherwise contains a thorough summary of the investigation over the course of 

several months which included several statements from Arnold regarding his
5 19-50033

activities at Wilton and detailed that two narcotics samples were obtained from 

Arnold. The asserted omissions do not make the affidavit misleading and even if 

they were supplemented, the affidavit would have provided probable cause for the 

search warrant.

II. The District Court’s Rehaif Error

No plain error resulted from the indictment’s failure to allege, and the 

district court’s failure to find, the knowledge element of a prosecution under 18 

U.S.C. § 922(g) as established in Rehaif v. United States, 139 S. Ct. 2191, 2200 

(2019) (holding that the government “must prove [both] that the defendant knew 

he possessed a firearm and that he knew he belonged to the relevant category of 

persons barred from possessing a firearm.”). We review for plain error an 

insufficient indictment and an incorrect legal standard claim2raised for the first 

time on appeal. Johnson, 2020 WL 6268027, at *3. Under plain error review, relief 

is not warranted unless “(1) there was an error, (2) the error is clear or obvious, (3) 

the error affected [the defendant’s] substantial rights, and (4) the error seriously 

affected the fairness, integrity, or public reputation of judicial proceedings.” Id.

2 Arnold frames his argument as a “sufficiency of the evidence” claim. This Court 

recently held in United States v. Johnson, --- F.3d ---, 2020 WL 6268027 (9th Cir. 

2020) that an identical claim was “best understood not as a challenge to the 

sufficiency of the evidence, but rather as a claim that the district court applied the 

wrong legal standard in assessing his guilt—specifically, by omitting the 

knowledge-of-status element now required under Rehaif.” Id. at *3.
6 19-50033

(citing United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 2019)). 

Although the first two prongs have been satisfied, we conclude that Arnold

has not satisfied the third or fourth prongs of the plain error standard, which 

require him to show that “but for the error, the outcome of the proceedings would 

have been different.” Benamor, 937 F.3d at 1188 (citing Molina-Martinez v. 

United States, 136 S. Ct. 1338, 1343 (2016)). The trial record indicates that Arnold 

had previously been convicted of a domestic violence misdemeanor under 

California Penal Code § 273.5(a), which prohibits the infliction of corporal injury 

on a cohabitant or the mother or father of a defendant’s child. The trial record 

further indicates that, as a part of his conviction, Arnold enrolled in a 52-week 

domestic violence program. This evidence proves beyond a reasonable doubt that 

Arnold had the requisite knowledge under Rehaif for a conviction under 18 U.S.C. 

§ 922(g)(9). See Benamor, 937 F.3d at 1189.

III. Arnold’s Sentence

We review a district court’s interpretation of the United States Sentencing 

Guidelines de novo, its application of those Guidelines for abuse of discretion, and 

its factual findings for clear error. United States v. Treadwell, 593 F.3d 990, 999 

(9th Cir. 2010), overruled on other grounds by United States v. Miller, 953 F.3d 

1095 (9th Cir. 2020). A district court abuses its discretion if it applies the 

Guidelines “in a way that is ‘illogical, implausible, or without support in inferences 
7 19-50033

that may be drawn from the facts in the record.’” Id. at 999 (quoting United States 

v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc)). 

U.S.S.G. § 2D1.1(b)(1) provides for a two-level increase in a defendant’s 

sentencing score if a “dangerous weapon (including a firearm) was possessed” 

during the commission of a drug trafficking crime. The district court need not find 

a connection between the weapon and the offense, just that the defendant possessed 

the weapon during commission of the offense. United States v. Restrepo, 884 F.2d 

1294, 1296 (9th Cir. 1989). The enhancement is appropriate “unless it is clearly 

improbable that the weapon was connected with the offense.” United States v. 

Boykin, 785 F.3d 1352, 1364 (9th Cir. 2015). The district court properly applied 

the enhancer to Arnold’s sentencing score by considering “all of the offense 

conduct, not just the crime of conviction.” See United States v. Willard, 919 F.2d 

606, 610 (9th Cir. 1990) (quoting U.S.S.G. § 2D1.1 n. 3 (2010)). Arnold was 

convicted of conspiracy drug trafficking in connection with his activities at the 

Wilton address. A search of the Wilton address resulted in the seizure of two 

firearms, marijuana, and other drug trafficking contraband. His possession of the 

firearms at the address where he carried out the drug trafficking conspiracy 

supports the application of this enhancement. Boykin, 785 F.3d at 1364.

AFFIRMED.