NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 30 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50372 Plaintiff-Appellee, D.C. No. 5:19-cr-00151-DSF-3 v. CARLOS ROMERO-CORICHE, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding Argued and Submitted November 19, 2020 Pasadena, California Before: PAEZ and VANDYKE, Circuit Judges, and IMMERGUT,** District Judge. Concurrence by Judge VANDYKE Defendant-appellant Carlos Romero-Coriche (Romero) was charged in an eleven-count indictment for his role in an alleged conspiracy to transport and harbor undocumented immigrants in Southern California for financial gain. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karin J. Immergut, United States District Judge for the District of Oregon, sitting by designation. Following a jury trial, Romero was convicted on all eleven counts. On appeal, Romero challenges his conviction on Counts 2 through 11 and his sentence. We have jurisdiction under 28 U.S.C. § 1291. We vacate in part, affirm in part, and remand. 1. Romero argues that Counts 2 through 11 of the indictment were duplicitous and that the district court’s jury instructions failed to remedy that error, violating his Sixth Amendment right to a unanimous jury verdict. We agree. “Where a defendant fails to object to an indictment as duplicitous before trial and fails to object to the court’s jury instructions at trial, we review for plain error.” United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006). Romero did not object to the indictment or the district court’s jury instructions. We therefore review his challenge to the jury instructions for Counts 2 through 11 for plain error.1 “Plain error is (1) error, (2) that is plain, and (3) that affects substantial 1 The government’s argument that Romero waived the jury instruction claim is unpersuasive. The government concedes that we may review a challenge to the jury instructions for plain error. See Arreola, 467 F.3d at 1161. Romero challenged both the indictment and jury instructions in his opening brief. Thus, while the indictment duplicity claim was waived under Federal Rule of Criminal Procedure 12(b)(3), the claim as to the jury instructions is not waived. See, e.g., United States v. Guerrero, 921 F.3d 895, 898 (9th Cir. 2019) (per curiam); United States v. Technic Servs., Inc., 314 F.3d 1031, 1039-40 (9th Cir. 2002), overruled on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010) (en banc) (per curiam). 2 rights.” United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc) (quoting United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009)). If those three prongs are satisfied, “the reviewing court has the discretion to grant relief so long as the error ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’” Id. The government concedes, and we agree, that the first two prongs are ...
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