United States of America v. Christopher Michael Emter

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER MICHAEL EMTER,
Defendant-Appellant.
No. 15-30364
D.C. No.
1:14-cr-00089-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted April 4, 2017**
Seattle, Washington
Before: KOZINSKI and W. FLETCHER, Circuit Judges, and
TUNHEIM,*** Chief District Judge.
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.

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1. Evidence is admissible if the officers lawfully searched the area where
the evidence was found and had probable cause to believe it was associated with
criminal activity. See United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir.
2005). Here, the officers had probable cause to believe the firearm was
incriminating because they knew Emter was on probation, found Emter near where
the gun was located and found the gun in a bin with men’s clothing. The district
court did not err in denying Emter’s motion to suppress.
2. A district court has discretion to reject a defendant’s proposed jury
instruction when “other instructions given in their entirety cover the defense
theory.” United States v. Tucker, 641 F.3d 1110, 1122 (9th Cir. 2011). A “mere
presence” instruction is not required when the government’s case rests on “more
than just a defendant’s presence.” Id. (internal quotation marks omitted). Because
the government’s case against Emter rested on more than his mere presence and the
Ninth Circuit’s model instruction for possession did not prevent Emter from
arguing his defense theory, the district court did not err in rejecting Emter’s
alternate instructions as confusing or inapplicable.
3. There’s no evidence that the district court misunderstood its discretion to
depart from the sentencing guidelines, which the court expressly described as

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“advisory.” Nor is there evidence that the court misunderstood the role of the
Bureau of Prisons. The district court adequately considered all the evidence and
arguments presented, and Emter’s sentence was reasonable.
AFFIRMED.

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