United States v. Steven Hopper ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30194
Plaintiff-Appellee, D.C. No. 1:17-cr-00044-SPW-1
v.
MEMORANDUM*
STEVEN NEIL HOPPER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted August 27, 2018**
Seattle, Washington
Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.
Steven Neil Hopper challenges the 70-month sentence imposed following his
guilty-plea conviction for being a felon in possession of firearms and ammunition,
in violation of 18 U.S.C. § 922(g)(1). 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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hopper argues that it was error to apply the four-level enhancement under
U.S.S.G. § 2K2.1(b)(1)(B) because he did not possess eight or more firearms. The
government sought to prove that, in addition to the two firearms underlying his
conviction, Hopper constructively possessed six other firearms, which he offered to
sell to a special agent, who was working undercover. Although Hopper contended
that the firearms belonged to another individual and he never actually intended to
sell them to the undercover agent, Hopper did not dispute the existence of the
firearms themselves before the district court. The description of the firearms that
Hopper gave the undercover agent was consistent with the description Hopper had
given to another confidential source to whom he had also offered to sell the firearms.
And, Hopper was found with ammunition matching several of the described
firearms.
Reviewing for clear error, see United States v. Nungaray, 697 F.3d 1114, 1116
(9th Cir. 2012), these facts support a finding that Hopper had “knowledge of the
[firearms] and the power and intent to exercise control over them.” See United States
v. Vasquez, 654 F.3d 880, 885 (9th Cir. 2011); see also Nungaray, 697 F.3d at 1116–
17 (affirming finding of constructive possession where defendant initiated contact
with buyer, negotiated price, directed delivery and sale location, and took payment
for firearms).
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Nor did due process preclude reliance on testimony regarding the confidential
source’s statements or further examination of Special Agent Cook and Officer
Feuerstein during the sentencing hearing. The district court had discretion to rely
on hearsay evidence and examine witnesses in connection with sentencing. See
United States v. Vanderwerfhorst, 576 F.3d 929, 935 (9th Cir. 2009) (“[T]he district
court may consider a wide variety of information at sentencing that could not
otherwise be considered at trial and is not bound by the rules of evidence.” (internal
citations omitted)); United States v. Alfaro, 336 F.3d 876, 883 (9th Cir. 2003)
(explaining district court may call and examine witnesses). Hopper has not shown
that the confidential source’s statements lacked any indicia of reliability, see United
States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993), or that the district court failed
to remain impartial and disinterested, see Alfaro, 336 F.3d at 883–84.
AFFIRMED.
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