FILED NOT FOR PUBLICATION DEC 10 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30134

Plaintiff-Appellee, D.C. No. 2:14-cr-00113-JLR-1 v.

MICHAEL A. RILEY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Submitted December 6, 2018** Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

Defendant Michael A. Riley timely appeals his conviction by plea agreement

of one count of possession of methamphetamine with intent to distribute,

(a)(1); one count of possession of heroin with intent to distribute, id.; and one

count of possession of a firearm in furtherance of a drug trafficking crime, 18

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). U.S.C. § 924(c). Defendant argues that the district court erred by denying his

motion to set aside his guilty plea. Reviewing for abuse of discretion, United

States v. Mayweather,

(9th Cir. 2010), we affirm.

1. The district court correctly concluded that the plea hearing complied with

Federal Rule of Criminal Procedure 11(b). At the time of the hearing, Defendant

had withdrawn his motion for a determination of competency; Defendant’s lawyer

stated that Defendant was now legally competent; Defendant asserted that he was

not under the effect of any mind-altering drugs or anything else that would affect

his understanding of the proceedings; and Defendant’s conduct at the hearing

strongly suggested competency to stand trial. When Defendant sought to withdraw

his plea, the district court laudably conducted an evidentiary hearing and

permissibly found Defendant’s testimony not credible. Unlike in United States v.

Christensen,

(9th Cir. 1994), Defendant’s "mental or emotional

state" was not "a substantial issue" by the time of the plea hearing.

2. Defendant’s initial lawyer did not misadvise him about the possibility

that a jury could convict him on Count Four, possession of a firearm found in a

locked safe that also contained items directly linked to Defendant, as well as large

quantities of ammunition, drugs, and cash. Those facts, if proved at trial, would

suffice to sustain a conviction. See, e.g., United States v. Norwood,

2 1063, 1071–72 (9th Cir. 2010) (holding that the government must "illustrate

through specific facts, which tie the defendant to the firearm, that the firearm was

possessed to advance or promote the criminal activity" (internal quotation marks

omitted)).

3. Defendant’s initial lawyer did not misadvise him about the potential

statutory minimum sentence, if he were convicted on all counts. Count Four

alleged a violation of § 924(c) with three predicate offenses, and Count Seven

alleged a violation of § 924(c) with the same three predicate offenses plus an

additional predicate offense. "[A] defendant may be convicted and sentenced for

multiple violations of § 924(c) so long as each 924(c)(1) count is supported by a

separate predicate offense." United States v. Beltran-Moreno,

(9th Cir. 2009) (internal quotation marks and brackets omitted). "Accordingly, the

government was entitled to charge the defendants with two separate § 924(c)

counts, and, [if a jury had convicted Defendant], the district court [would have

been] required to impose consecutive minimum sentences of five and twenty-five

years on top of the ten-year mandatory minimum that attached to the drug

charges." Id. at 916–17.

AFFIRMED.

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