NOT FOR PUBLICATION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

Plaintiff

- Appellee,

v. JONATHAN MOTA,

Defendant

- Appellant. No. 16

- 10468
D.C. No. 4:13

- cr - 00093

- JST

- 1

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding Submitted February 13, 2019 ** San Francisco, California Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
Jonathan M ota appeals from his convictions under 18 U.S.C. §§ 1951(a), 924(c), and 924(j)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and affirm in part and reverse in part. The district court did not abuse its discretion by restricting M ota’s a ccess to

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

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

FEB 20 2019
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

a pen during pretrial proceedings. See United States v. Sh ry ock , 342 F.3d 948,
974

– 75 (9th Cir. 2003) (reviewing trial court ’ s security measures for abuse of discretion). The district court appropriately based this security measure on the charges against Mota and consultation with the United States Marshal s Service (“USMS”)

. See id. at 975 (finding “allegations of extraordinarily violent crimes” an appropriate basis for security measures ); United States v. Collins , 109 F.3d 1413, 1418 (9t h Cir. 1997) (finding advice from the USMS an appropriate basis for security measures ).
Nor did failing to order the government to give more advance notice of its
witnesses and evidence violate Mota’s right to self

- representation. Even if the lack of notice, combined with restrictions on Mota’s access to trial materials while incarcerated, affect ed his ability to prepare a defense, we have previously upheld comparable restrictions. See United States v. Robinson , 913 F.2d 712, 717

– 18 (9th Cir. 1990). Even if the jury instructions for Count One permitted the jury to convict for Hobbs Act extortion, rather than robbery ( the co nduct charged in the indictment), Mota’s constructive amendment argument fails on plain error review. See United
States v. Hartz , 458 F.3d 1011, 1019 (9th Cir. 2006) (reviewing constructive
amendment claim not raised before the district court for plain error). The jury could not have found that Forrest Seagrave consented to Mota t aking property,3

when Seagrave was attempting to stop the crime up until the moment he was fatally shot. United States v. Ward , 747 F.3d 1184, 1191 (9th Cir. 2014) (noting
that constructive amendment claims fail “when no evidence was introduced at trial
th at would enable the jury to convict the defendant for conduct with which he was not charged.”). The jury instructions for Count Three did not constructively amend the indictment, because the indictment did not specify that the murder being charged was fel ony murder

. Ninth Circuit precedent forecloses Mota’s argument that the Hobbs Act as applied in this case violates the Commerce Clause. United States v. Atcheson , 94 F.3d 1237, 1242 (9th Cir. 1996). Taylor v. United States , 136 S. Ct. 2074 (2016), does not undermine this conclusion, because unlike this case and Atcheson , Taylor dealt with purely intra state activity. See Taylor , 136 S. Ct. at 2078

– 79. We have also previously rejected the argument that the Hobbs Act require s more than “proof
of a probable or potential impact on interstate commerce. ” United States v. Lynch , 437 F.3d 902, 909 (9th Cir. 2006) (internal quotation marks omitted)

. Because conviction under 18 U.S.C. § 924(j)(1) requires proof the defendant
also v iolated 18 U.S.C. § 924(c), Mota’s conviction for both offenses is multiplicitous. United States v. Davenport , 519 F.3d 940, 943 (9th Cir. 2008).
We therefore remand with instructions to vacate Mota’s conviction and

sentence on Count Two, the lesser char ge
. United States v. Jose , 425 F.3d 1237,4

1247 (9th Cir. 2005) (when conviction on a lesser

- included offense violates the Double Jeopardy Clause, district court should vacate the sentence and conviction on the lesser offense). We affirm in all other resp ects.
A FFIRMED in part , VACATED in part, and REMANDED
.