United States v. Thomas Roberts ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30119
Plaintiff-Appellee, D.C. No.
2:16-cr-00070-RMP-1
v.
THOMAS MARTIN ROBERTS, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-30120
Plaintiff-Appellee, D.C. No.
2:18-cr-00047-RMP-1
v.
THOMAS MARTIN ROBERTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted July 10, 2020**
Seattle, Washington
*
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).
Before: CLIFTON, D.M. FISHER,*** and M. SMITH, Circuit Judges.
Thomas Roberts pled guilty to being a felon in possession of a firearm and
ammunition,1 possession of an unregistered firearm,2 and cyberstalking.3 He
appeals his sentence. We affirm.
The district court did not impermissibly double count when it relied on the
same weapon as the basis for both the base offense level, U.S.S.G.
§ 2K2.1(a)(4)(B), and an enhancement, U.S.S.G. § 2K2.1(b)(3)(B).
“[I]mpermissible double counting occurs . . . where one part of the Guidelines is
applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by the application of another part of the
Guidelines.” United States v. Reese, 2 F.3d 870, 895 (9th Cir. 1993). “If, on the
other hand, it is possible to be sentenced under a particular offense guideline
without having engaged in a certain sort of behavior, such behavior may be used
to enhance the offense level.” Id. Here, it was possible for Roberts to be assigned
the base offense level without possessing a destructive device. All that was
necessary was that he possess a “firearm,” U.S.S.G. § 2K2.1(a)(4), a term that
***
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
1
18 U.S.C. §§ 922(g)(1), 924(a)(2).
2
26 U.S.C. §§ 5845(a), (f), and 5861(d).
3
18 U.S.C. §§ 2261A(2)(B), 2261(b)(5), (6).
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has eight different statutory definitions—only one of which is “destructive
device,” 26 U.S.C. § 5845(a). Therefore, Roberts’ possession of the destructive
device could be used to enhance his offense level. Reese, 2 F.3d at 895.4
Nor did the Government need to present evidence establishing the length
and bore diameter of the shotgun. Roberts argues that he did not waive this issue
because he “broadly objected to the destructive device enhancement as double
counting.” However, objecting to double counting (a legal issue) did not put the
Government or the district court on notice that evidence was needed about the
gun’s measurements (a decidedly factual issue). Roberts’ failure to object to this
aspect of his presentence report has two consequences: the district court was
entitled to “accept[] as accurate” the report’s statement of the shotgun’s
measurements, and we “review[] only for plain error.” United States v. Scrivner,
114 F.3d 964, 967 (9th Cir. 1997).
There was no plain error. The district court concluded that the firearm was
4
Although Reese is sufficient, by itself, to support affirmance, we also note that
the district court applied the Guideline in accordance with the Application Note.
See U.S.S.G. § 2K2.1 n.7 (“A defendant whose offense involves a destructive
device receives both the base offense level from the subsection applicable to a
firearm listed in 26 U.S.C. § 5845(a) . . . and the applicable enhancement under
subsection (b)(3).”). “[A]n Application Note ‘that interprets or explains a guideline
is authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.’ ” United States
v. Prien-Pinto, 917 F.3d 1155, 1157 (9th Cir. 2019) (quoting Stinson v. United
States, 508 U.S. 36, 38 (1993)).
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both (i) a “shotgun having a barrel or barrels of less than 18 inches in length” and
(ii) a “destructive device,” specifically a “weapon . . . which will . . . expel a
projectile by the action of an explosive . . . , the barrel or barrels of which have a
bore of more than one-half inch in diameter.” 26 U.S.C. § 5845(a)(1), (8), (f)(2).
Either conclusion was sufficient to apply U.S.S.G. § 2K2.1(a)(4), so no barrel-
length finding was necessary.
As for the bore, we take judicial notice that a 12-gauge shotgun has a bore
diameter of more than a half inch. W. Radio Servs. Co. v. Qwest Corp., 530 F.3d
1186, 1192 n.4 (9th Cir. 2008) (court may “take judicial notice of” fact that is
“capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned” (quoting Fed. R. Evid. 201(b)));
United States v. Henry, 417 F.3d 493, 494 (5th Cir. 2005) (taking judicial notice
that a 12-gauge shotgun has a bore diameter of more than a half inch); Migratory
Bird Hunting Regulations for Restriction of Shotshell Length, Shot Size, and
Shot Coatings, 58 Fed. Reg. 35,332 (June 30, 1993) (“[T]he nominal bore
diameter of a 12 gauge shotgun barrel is 0.730 inches.”).
The district court did not err in applying U.S.S.G. § 2K2.1(b)(4), which
provides for a two-level enhancement “[i]f any firearm . . . was stolen.” Roberts
contends there is no evidence he knew his weapons were stolen, but we have
held repeatedly that “the strict-liability enhancement of § 2K2.1(b)(4) . . . is
4 19-30119
constitutional.” Prien-Pinto, 917 F.3d at 1156.
Roberts’ sentence is not substantively unreasonable. The district court held
a lengthy sentencing hearing and then provided “rational and meaningful”
explanations (oral and written) for its decision to impose a within-Guidelines
sentence. United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir. 2011)
(quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)). Under the
totality of the circumstances, there was no abuse of discretion. See United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). In addition, it was within
the district court’s discretion to direct that Roberts’ federal sentence run
consecutively to his state sentence. Setser v. United States, 566 U.S. 231, 244
(2012).
AFFIRMED.
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