NOT FOR PUBLICATION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

- Appellee,

v. DANIEL RAY, AKA Popeye, AKA Daniel T. Ray, AKA Daniel Thomas Ray, Defendant

- Appellant. No. 18

- 50115
D.C. No. 5:17

- cr - 00159

- PA

- 2

MEMORANDUM *

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v. PATRICK JOHN BACON, Defendant

- Appellant. No. 18

- 50120 D.C. No. 5:17

- cr - 00159

- PA

- 1

Appeal from the United States District Court for the Central District of California Percy Anderson , United States District Judge , Presiding. Argued and Submitted January 6 , 20 20 Pasadena , California

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

- 3. 

# FILED

APR 28 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Before: WATFORD and BENNETT, Circuit Judges , and RAKOFF, * District Judge. Patrick Bacon and Daniel Ray were convicted of assault with a deadly weapon with intent to do bodily harm, under 18 U.S.C. § 1 1 3(a)(3) , and assault causing serious bodily injury, under id. § 1 1 3 (a)(6) , via id. § 2(a) (aiding and abetting). Defendants were sentenced to 120 months and 1 0 0 months in prison, respectively. They appeal the convictions and sentences

. We have jurisdiction under 28 U.S .C. § 1291 and 18 U.S.C. § 374 2

. 1
1. Reviewing de novo , the district court properly preclud ed Bacon’s duress defense. See United States v. Ibarra

- Pino , 657 F.3d 1000, 100 4 (9th Cir. 2011) (defendant must make a “prima facie showing of duress in a pretrial offer of proof ”)

. Bacon has not shown that he “ had no reasonable opportunity to escape. ” United States v. Wood , 566 F.2d 1108, 1109 (9th Cir. 1977) (per curiam); see also United States v. Houston , 648 F.3d 806, 817 (9th Cir. 2011)

. 2. R eview ing “the district court’s decision on the Rule of Completeness for an abuse of discretion,” United States v. Vallejos , 742 F.3d 902, 905 (9th Cir. 2014) , we find t he district court did not abuse its discretion

. First, there is no “misleading impression , ” id

. (citation omitted), that the completed paragraph after

1 In a concurrently filed opinion, we address Bacon’s argument that the district court abused its discretion by precluding Dr. Karim, Bacon’s expert witness , f rom testifying in support of Bacon’s insanity defense.3 Bacon’s statement that he was “raised to be an honest person , ” would correct

. Nor

can the defendant include additional portions simply because they would give context to the jury. See id

. (district cou rt properly rejected redacted portion of defendant’s confession that he sought to include to “show the jury the ‘flavor of the interview,’ to ‘humanize’ [defendant], to prove his ‘character,’ and to convey to the jury the voluntariness of his statement” ). Second, defendant cannot “elicit[] his own exculpatory statements, which were made within a broader, inculpatory narrative.” United States v. Ortega , 203 F.3d 675, 681

- 82 (9th Cir. 2000). The district court properly rejected Bacon’s request to include his statement s made prior to , and after , his statement that he said “something like ‘go in peace. ’ ” See id. at 682 (“ [ N ] on - self

- inculpatory statements are inadmissible even if they were made contemporaneously with other self

- inculpatory statements

. ”). 3 . Turning to Ray and a pplying the “ two

- step inquiry for considering a challenge to a conviction based on sufficiency of the evidence ,” United States v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) , we find there was sufficient evidence to support hi s conviction for assault

. Viewing the video evidence and eyewitness testimony in the light most favorable to the prosecution, a t least one rational juror could have found that Ray aided and abetted the assault. 4 . Ray also argues there is insufficient evidence that the government proved th e o ffense took place within the special maritime and territorial4 jurisdiction of the United States. Even if Ray preserved this claim , t h ere is sufficient evidence , such as uncontro verted testimony by the prison guards, that the government proved this element. See United States v. Read , 918 F.3d 712, 718 (9th Cir. 2019) (“ [U] ncontradicted testimony from inmates or employees at a federal prison can establish the jurisdictional element of 18 U.S.C. § 113. ”). 5 . Ray claims the district court improperly excluded a note allegedly written by Bacon

. Reviewing admissibility of evidence under Federal Rule of Evidence 804(b)(3) for abuse of discretion , see United States v. Rhodes , 713 F.2d 463, 473 (9th Cir. 19 83) , we find the district court did not abuse its discretion

. Among other things, the note was hearsay , irrelevant , and not a statement against interest

. See United States v. Oropeza , 564 F.2d 316, 325 (9th Cir. 1977)

. The distri ct court also did not abuse its discretion in preventing Ray from cross

examining Bacon about the properly excluded note

. See United States v. Shabani , 48 F.3d 401, 403 (9th Cir. 1995) ( no abuse of discretion “as long as the jury receives sufficient inform ation to appraise the biases and motivations of the witness”) (citation omitted)

. Because this “ evidentiary ruling was well within ” the district court’s discretion , there is no c onstitutional error

. United States v. Waters , 627 F.3d 345 , 35 3 (9th Cir. 2010)

. 6 . For sentencing, “ w e review the district court’s identification of the correct legal standard de novo and the district court’s factual findings for clear5 error.” United States v. Gasca

- Ruiz , 852 F.3d 1167, 1170 (9th Cir. 2017) (en ban c).

“ [A] pplication of the Sentencing Guidelines to the facts of a given case should be reviewed for abuse of discretion.” Id. On de novo review, the district court correctly identified the proper leg al standard for a mitigated role adjustment under U.S.S.G . § 3B1.2(b) , s ee United States v. Diaz , 884 F.3d 911, 91 6 (9th Cir. 2018) ( proper standard is to compare “defendant’s conduct

. . . against that of other participants in his or her own criminal scheme ” ) ; see Gasca

- Ruiz , 85 2 F.3d at 117 1 , 11 74

- 75 ( if the district court identifies the right guideline and commentary “we will not assume that the court applied the wrong legal standard” absent something more ) . The record does not show that the district court improperly compared Ray to a hypothetical aver age offender rather than an average participant in the scheme

. The district court compared Ray to the average defendant only in the context of the facts of the case. The district court ’s finding that Ray was

“ indispensable ” to the attack was also not legal error . The district court relied on multiple factual findings to support its conclusion that Ray was not a minor participant

. See Diaz , 884 F.3d at 915 (defendant’s essential or indispensable role is not outcome determinative)

. Lastly, t he district court did not abuse its discretion in applying the Note 3(C) factors to Ray. Ray must prove he was “ substantially less culpable than the average participant in the charged criminal activity. ” Id. at6 914 (internal quotations omitted). Based on the record he has not carried that burden. Thus, the district court did not abuse its discretion.
7 . The district court did not abuse its discretion , see Gasca

- Ruiz , 852 F.3d at 1170, in applying a two

- level “more than minimal planning” increase under U.S.S.G. § 2A2.2(b)(1). The district court properly found that th is was a coordinated assault , and the guidelines focus on the characteristics of the offense, not the individual. See § 2A2.2(b)(1) (“ [I] f the assault involved more than minima l planning

. . . . ”) (emphasis added). 8 . The parties agree that t he district court plainly erred in calculating Ray’s criminal history score

. See United States v. Depue , 912 F.3d 1227 , 1232 (9th Cir. 2019) (en banc) ( a finding of plain error requires erro r that is plain and affects substantial rights)

. The district court improperly counted th ree of Ray’s juvenile offense convictions

. S ee U.S.S.G. § 4A1.2(d)(2) ; see also United States v. Johnson , 205 F.3d 1197, 1199

- 1200 (9th Cir. 2000)

. T he district court’s plain error affected Ray’s substantial rights because it increased the suggested sentencing guidelines
range . 2 See Molina

- Martinez v. United States , 136 S. Ct. 1338, 13 45

- 46 (2016). Thus, w e vacate Ray’s sentence

. We decline the governmen t’s request for a limited

2 Ray’s criminal history score r esulted in his criminal history category increasing from IV to V

.7 remand and remand to the district court for resentencing on an open record. See United States v. Matthews , 278 F.3d 880, 885

- 86 (9th Cir. 2002) (en banc). AFFIRMED in PART, VACATED and REMANDED in PART .