United States of America v. Danny Lee Sherwood

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANNY LEE SHERWOOD,
Defendant - Appellant.
No. 12-30089
D.C. No. 3:09-cr-05810-RBL-4
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted June 7, 2013**
Seattle, Washington
Before: ALARCÓN, GILMAN***, and IKUTA, Circuit Judges.
FILED
AUG 02 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.

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Danny Lee Sherwood (“Sherwood”) appeals from the district court’s
judgment affirming his conviction for conspiracy to distribute oxycodone and
methadone, distribution of oxycodone, possession with intent to distribute
oxycodone, being a felon in possession of a firearm, and being a felon in
possession of ammunition.
Pursuant to Anders v. California, 386 U.S. 738 (1967), Ronald D. Ness,
Sherwood’s appointed counsel at trial and in this appeal, has filed a motion to
withdraw as counsel of record. He asserts that there is no merit to Sherwood’s
appeal. In his motion, Mr. Ness identified four possible issues that arguably might
support Sherwood’s appeal, as required by Anders. Id. at 744. Mr. Ness asserts
that each issue lacks merit. We agree.
I
When an attorney files an Anders brief, an appellate court is required to
conduct “a full examination of all the proceedings, to decide whether the case is
wholly frivolous.” Id. This Court has examined the reporter’s transcript of the
trial, the district court’s evidentiary rulings, its instructions to the jury, and the
sentencing transcript. We have determined that none of the following legal points
set forth by Mr. Ness are “arguable on their merits.” Id. Further, our independent
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review of the record, pursuant to Penson v. Ohio, 488 U.S. 75, 83 (1988), discloses
no other grounds for relief.
The prosecution submitted the personnel file of a potential witness, law
enforcement officer Estevan Sanchez, for an in camera inspection, as required by
United States v. Henthorn, 931 F.3d 29, 30–31 (9th Cir. 1990). After inspecting
the personnel file, the district court ordered that the prosecution produce the file to
defense counsel. The court also issued a protective order limiting the disclosure of
the material contained in the file. The record demonstrates that the prosecution and
the district court faithfully complied with this Court’s decision in Henthorn.
At trial, defense counsel challenged the admissibility of the proposed
testimony of Officer Sanchez and related demonstrative Microsoft Power Point
slides on the ground that they were not relevant. The prosecution informed the
court that the purpose of Officer Sanchez’s testimony and the presentation of the
Power Point slides “is that you cannot sell these drugs outside of the closed system,
and we have a closed system because these drugs are highly subjected to abuse.”
The district court overruled defense counsel’s objection to Officer Sanchez’s
testimony and related Power Point slides. Officer Sanchez was not called as a
witness nor is there any indication that the Power Point evidence was presented to
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the jury by any witness. Accordingly, the district court’s ruling on the proposed
testimony of Officer Sanchez did not result in any error.
The district court denied Sherwood’s request to instruct the jury on the
definition of the term “in furtherance of a crime” as set forth in Requested
Instruction No. 3. The jury acquitted Sherwood of Count 32, which charged him
with possession of two firearms in furtherance of a drug trafficking crime.
Therefore, whether the district court erred in rejecting Sherwood’s proposed
instruction is moot.
The record shows that the district court denied Sherwood’s motion to
dismiss Counts 33 and 34 of the indictment, which charged him with possession of
a firearm and ammunition that had traveled through interstate commerce. In
support of this motion, defense counsel argued that the prosecution had failed to
present evidence that Sherwood was involved in shipping or transporting a firearm
or ammunition through interstate commerce. In Barrett v. United States, 423 U.S.
212 (1976), the Supreme Court held that 18 U.S.C. § 922(h) does not require the
prosecution to prove that the defendant transported a firearm in interstate
commerce. Id. at 225. A person is guilty of that crime if he receives a firearm that
previously was shipped or transported in interstate commerce by anyone. Id. at
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216–17. Therefore, the district court did not err in rejecting Sherwood’s motion to
dismiss Counts 33 and 34.
II
Sherwood’s theory of defense at trial was that the evidence was insufficient
to persuade a rational trier of fact that he was guilty beyond a reasonable doubt of
conspiracy to distribute oxycodone and methadone. The evidence adduced at trial
included three controlled buys from Sherwood by government agents for
oxycodone pills. Agents also recovered a large amount of cash, a firearm, and
ammunition from Sherwood’s residence. None of this evidence was challenged on
appeal. When viewed in the light most favorable to the prosecution, this evidence
is sufficient to demonstrate that a rational trier of fact could have found Sherwood
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(“[T] he relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”) (emphasis in
original)).
Conclusion
Based on our independent review of the record, we find “no nonfrivolous
issue for appeal.” Penson, 488 U.S. at 80. In an order filed on May 22, 2013, we
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instructed Sherwood that he could file a pro se supplemental brief in support of his
appeal by July 1, 2013. He has failed to do so.
Mr. Ness’s motion to withdraw is GRANTED.
The district court’s judgment of conviction is AFFIRMED.
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