United States v. Derek Bellamy , 586 F. App'x 306 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-30296
Plaintiff - Appellee, D.C. No. 1:13-cr-00031-SEH-1
v.
MEMORANDUM*
DEREK TYSON BELLAMY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 19, 2014
Portland, Oregon
Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.
Derek Tyson Bellamy was convicted of being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1), and sentenced to 63 months imprisonment. Bellamy appeals
the conviction, claiming insufficient evidence, and the sentence, claiming it is
substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. To obtain a conviction under 18 U.S.C. § 922(g)(1), the government must
prove “(1) that the defendant was a convicted felon; (2) that the defendant was in
knowing possession of a firearm . . .; and (3) that the firearm . . . was in or affecting
interstate commerce.” United States v. Nevils, 598 F.3d 1158, 1163 (9th Cir. 2010)
(en banc) (quoting United States v. Beasley, 346 F.3d 930, 933-34 (9th Cir. 2003)).
Possession is established when the defendant has “knowledge of the firearms and the
power and intent to exercise control over them.” United States v. Nungaray, 697 F.3d
1114, 1117 (9th Cir. 2012) (internal quotation marks and citation omitted).
2. Bellamy stipulated that he was a convicted felon and that the firearm at issue
traveled in interstate commerce; only possession is at issue. Bellamy’s admissions
that he “saw the firearm when he [got] into the vehicle,” and “pushed the gun back
when he was exiting the vehicle,” are sufficient to establish that Bellamy had
knowledge of the firearm and the power and intent to control it. See United States v.
Gutierrez, 995 F.2d 169, 171-72 (9th Cir. 1993) (finding a passenger’s attempt to
conceal a weapon from police established possession).
3. Bellamy’s within-Guidelines sentence, which took account of a base offense
level of 22 under United States Sentencing Guidelines § 2K2.1(a)(3), and five
criminal history points under U.S.S.G. § 4A1.1(a), (d), was not unreasonable. See
2
Gall v. United States, 552 U.S. 38, 41 (2007) (“[C]ourts of appeals must review all
sentences . . . under a deferential abuse-of-discretion standard.”).
AFFIRMED.
3