UNITED STATES of America, Plaintiff-Appellee, v. Daniel Lawrence McCOY, Defendant-Appellant, 495 F. App'x 774

MEMORANDUM Daniel Lawrence McCoy appeals his conviction and sentence for possession of cocaine base with intent to distribute and for felon in possession of a firearm. See 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii); 18 U.S.C. § 922(g)(1). We affirm in part and vacate and remand in part.

(1) The district court did not err when, based on the evidence in the record, it was persuaded that the officer had probable cause to stop McCoy’s automobile for a brake light violation.

(2) The prosecutor sought and obtained a superseding indictment before trial, though after McCoy filed a motion to suppress evidence. The superseding indictment added the charge of possession with intent to distribute cocaine base on February 3, 2009, to the already charged offense relating to a February 28, 2009, incident. The mere adding of the new charge at that stage of the proceedings did not give rise to an appearance of vindictiveness. See United States v. Kent, 649 F.3d 906, 912-13 (9th Cir.) cert. denied, — U.S. -, 132 S.Ct. 355, 181 L.Ed.2d 224 (2011); United States v.

Gamez-Orduno, 235 F.3d 453, 463 (9th Cir.2000); United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir. 1996). Nor was vindictiveness otherwise shown.

(3) The district court did not abuse its discretion when it allowed the government to rescind its mistakenly exercised last peremptory challenge and to replace it with a different peremptory challenge, but also granted relief to McCoy in order to avoid any unfairness to him. See United States v. Warren, 25 F.3d 890, 894 (9th Cir.1994). Nor has McCoy pointed to any prejudice that resulted from the district court’s handling of the unusual situation it faced. See Rivera v. Illinois, 556 U.S. 148, 160-61, 129 S.Ct. 1446, 1455, 173 L.Ed.2d 320 (2009); United States v.

Martinez-Salazar, 528 U.S. 304, 316-17, 120 S.Ct. 774, 782, 145 L.Ed.2d 792 (2000); United States v. Lindsey, 634 F.3d 541, 550 (9th Cir.), cert. denied, — U.S.-, 131 S.Ct. 2475, 179 L.Ed.2d 1232 (2011); United States v. Springfield, 829 F.2d 860, 863-64 (9th Cir.1987).

(4) The evidence was sufficient to support the jury’s decision that McCoy knowingly possessed cocaine base with intent to distribute it. See United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000); see also United States v. Lopez, 477 F.3d 1110, 1113-14 (9th Cir.2007); United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979). He asserts that the evidence would allow for an inference that he merely knowingly possessed the cocaine base. Perhaps so, but that is not the test for sufficiency. See United States v. Nevils, 598 F.3d 1158, 1161, 1164-65 (9th Cir. 2010) (en banc).

(5) McCoy argues that the district court was required to instruct the jury that it must unanimously agree on the particular felony that was an element of the felon in possession charge against him. Assuming, without deciding, that a unanimity instruction was required, suffice it to say that the record shows that the district court did give a unanimity instruction.

(6) McCoy next asserts that even though he committed his possession with intent to distribute offense before the enactment of the Fair Sentencing Act on August 3, 2010, the Act applies to him because he was sentenced after that date. We agree. See Dorsey v. United States, 567 U.S.-,---, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). Thus, we vacate McCoy’s sentence and remand for resen-tencing.

(7) McCoy finally argues that the district court erred when it enhanced his offense level for possession of cocaine base with intent to distribute by two levels on the basis that he possessed a firearm during the commission of that offense on February 3, 2009. See U.S.S.G. § 2Dl.l(b)(l) (Nov. 2010); see also id. at comment, (n.3). He did not raise this issue at the district court, and we will not opine on his argument. See United States v. Crandall, 525 F.3d 907, 915 n. 9 (9th Cir.2008). We leave it to the district court to consider that argument in the first instance.

McCoy’s conviction is AFFIRMED; his sentence is VACATED and REMANDED for further proceedings. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . See United States v. Ewing, 638 F.3d 1226, 1229 (9th Cir.2011); see also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); United States v. Stanley, 653 F.3d 946, 952 (9th Cir.2011). . See United States v. Hawkins, 249 F.3d 867, 872 (9th Cir.2001); United States v. Marshall, 488 F.2d 1169, 1186 (9th Cir.1973). . See Whren v.

United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). . See Cal. Veh.Code § 24252(a). . Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010).