Petition for Writ of Certiorari — Avery Curry Archuleta, aka Avery Archuleta, Petitioner v. United States

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APPENDIX A

United States of America v.

Memorandum No. 23-399 (9th Circ. 4/16/24

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NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

APR 16 2024

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

U.S. COURT OF APPEALS

No. 23-399

UNITED STATES OF AMERICA,

D.C. No.

3:22-cr-08024-SMB-1

Plaintiff - Appellee,

v.

AVERY CURRY ARCHULETA, AKA

Avery Archuleta,

MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Submitted April 3, 2024**

Phoenix, Arizona

Before: HAWKINS, BYBEE, and BADE, Circuit Judges.

Defendant-Appellant Avery Archuleta appeals his conviction, after a jury trial, of violating 18 U.S.C.

§§ 1153, 113(a)(3), and 113(a)(6). Archuleta contends that the district court plainly erred by failing to

specifically instruct the jury that it

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).

**

must be unanimous in its determination of whether the government disproved selfdefense. He also argues that

he received ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

When, as here, the defendant did not object to a jury instruction at trial, we review the instruction for

plain error. United States v. Sanders, 421 F.3d 1044,

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1050 (9th Cir. 2005). Thus, Archuleta must show “(1) an error (2) that is plain, (3) that affects ‘substantial

rights,’ and (4) that ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’”

United States v. Hinkson, 585 F.3d 1247, 1268 (9th Cir. 2009) (en banc) (quoting United States v. Hammons,

558 F.3d 1100, 1103 (9th Cir. 2009)).

We reject Archuleta’s argument that the district court plainly erred by not giving a specific self-defense

unanimity instruction. The district court instructed the jury several times that its verdict must be unanimous.

“In the ordinary case, a general instruction that the verdict must be unanimous will be sufficient to protect the

defendant’s rights.” United States v. Tuan Ngoc Luong, 965 F.3d 973, 985 (9th

Cir. 2020) (brackets omitted) (quoting United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir. 1989)). A

specific unanimity instruction is required only when there is “a genuine possibility of jury confusion or that a

conviction may occur as the result of different jurors concluding that the defendant committed different acts.”

United States v. Gonzalez, 786 F.3d 714, 717 (9th Cir. 2015) (quoting United States v. Chen Chiang Liu, 631

F.3d 993, 1000 (9th Cir. 2011)). Archuleta has shown neither possibility. Given the district court’s “wide

discretion in crafting jury instructions,” we conclude that it did not plainly err by failing to give a specific selfdefense unanimity instruction. United States v. Humphries, 728 F.3d 1028, 1033 (9th Cir. 2013).

“This court usually declines to reach ineffective challenges on direct appeal, because the claim cannot

be advanced without development of facts outside the record.” United States v. Hanoum, 33 F.3d 1128, 1131

(9th Cir. 1994). We thus ordinarily leave ineffective assistance of counsel claims for habeas proceedings

because the record on direct appeal typically lacks sufficient evidence of “what counsel did, why it was done,

and what, if any, prejudice resulted.” United States v. Mohsen, 587 F.3d 1028, 1033 (9th Cir. 2009) (quoting

United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000)). We decline to take the unusual step of considering

Archuleta’s ineffective assistance of counsel claim on direct appeal.

Archuleta argues that trial counsel was ineffective by failing to object to the self-defense jury

instruction and the introduction of evidence under Federal Rule of Evidence 404(b)(2), and by advising him not

to testify in his own defense. Any error committed by defense counsel is not so obviously a violation of the

Sixth

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Amendment as to justify direct review. See United States v. Steele, 733 F.3d 894, 897 (9th Cir. 2013) (stating

that considering an ineffective assistance claim on direct appeal is appropriate only when the defendant’s Sixth

Amendment right was obviously violated or when the record is adequately developed to allow review). And the

record is not sufficiently developed for us to evaluate the claim because, in part, “defense counsel has not had

an opportunity to explain his actions.” United States v. Moreland, 622 F.3d 1147, 1157 (9th Cir. 2010).

AFFIRMED

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