United States v. McReynolds, 111920 FED9, 19-10343

Docket Nº:19-10343
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LOREN JOEL MCREYNOLDS, Defendant-Appellant.
Judge Panel:Before: TALLMAN, BYBEE, and BADE, Circuit Judges.
Case Date:November 19, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

LOREN JOEL MCREYNOLDS, Defendant-Appellant.

No. 19-10343

United States Court of Appeals, Ninth Circuit

November 19, 2020

NOT FOR PUBLICATION

Appeal from the United States District Court for the District of Arizona, No. 3:18-cr-08052-DGC-1 David G. Campbell, District Judge, Presiding

Submitted November 17, 2020 [**] Phoenix, Arizona

MEMORANDUM [*]

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

Defendant-Appellant Loren Joel McReynolds appeals his forty-six-month sentence of imprisonment following his conviction by guilty plea to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

McReynolds argues that the district court erred in finding his illegal possession of the Bushmaster AR-15 rifle, charged in Count 12 of the indictment- which remained pending at the time of sentencing-was relevant conduct when calculating his base offense level. "A district court's factual determination that conduct is 'relevant conduct' within the meaning of section 1B1.3 of the Sentencing Guidelines is reviewed for clear error." United States v. Kahlon, 38 F.3d 467, 470 (9th Cir. 1994) (citation omitted).

At sentencing, the district court denied McReynolds' objections to the presentence report's references to his possession of the Bushmaster AR-15 rifle, citing U.S.S.G. § 1B1.4, 18 U.S.C. § 3661, and United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam) (holding that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence"). After finding that "more than a preponderance of the evidence" established that McReynolds possessed the Bushmaster AR-15 rifle, the district court concluded that the Bushmaster rifle "is properly taken into account" as relevant conduct "for purposes of establishing a base offense level of 20." The district court did not clearly err in doing so.

"In determining the sentence to impose . . ., the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." U.S.S.G. § 1B1.4 (citing 18 U.S.C. § 3661). Section 1B1.3 of the Guidelines "describes in sweeping language the conduct that a sentencing court may consider in determining the applicable guideline range," Watts, 519 U.S. at 152-53, including as relevant conduct other offenses that were "part of the same course of conduct or common scheme or plan as the offense of conviction," U.S.S.G. § 1B1.3(a)(2). "Relevant conduct in firearms cases generally arises . . . where the firearms are otherwise legal but the defendant, usually due to criminal history or prohibited status under federal law, is not able to legally possess them." United States v. Vargem, 747 F.3d 724, 732 (9th Cir. 2014) (citations omitted).

In this case, the district court properly considered McReynolds' possession of the Bushmaster AR-15 rifle set forth in Count 12 of the indictment because this additional felon-in-possession count was "part of the same course of conduct or common scheme or plan as the offense of conviction."...

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