United States v. Defrance

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 30 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2409 D.C. No. Plaintiff - Appellee, 9:21-cr-00029-DLC-1 v. MEMORANDUM* MICHAEL BLAKE DEFRANCE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Argued and Submitted September 12, 2024 Seattle, Washington

Before: CHRISTEN and SUNG, Circuit Judges, and RAKOFF, District Judge.**

Michael Blake DeFrance appeals his convictions for one count of being a

prohibited person in possession of firearms and ammunition, 18 U.S.C.

§ 922(g)(9), and three counts of making a false statement during a firearms

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. transaction, id. § 922(a)(6), as well as his 21-month prison sentence. For the

reasons stated here and in a concurrently filed opinion, we affirm in part, reverse in

part, vacate in part, and remand.

1. Reviewing de novo, see United States v. Kent, 649 F.3d 906, 912 (9th

Cir. 2011) (“[W]here our vindictive prosecution inquiry turns upon a district

court’s proper application of the law, our review is de novo.”), we reject

DeFrance’s contention that the government sought the § 922(a)(6) “charges solely

to punish [him] for exercising a constitutional or statutory right.” United States v.

Gamez-Orduno, 235 F.3d 453, 462 (9th Cir. 2000). It is undisputed that the

government was unaware of DeFrance’s false statements on the Firearms

Transaction Records until DeFrance submitted them to the district court, and the

Supreme Court has made clear that “[t]here is good reason to be cautious before

adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial

setting” because, “[i]n the course of preparing a case for trial, the prosecutor may

uncover additional information that suggests a basis for further prosecution.”

United States v. Goodwin, 457 U.S. 368, 381 (1982). DeFrance failed to show that

the circumstances established a “reasonable likelihood of vindictiveness.” Kent,

649 F.3d at 912–13 (quoting Goodwin, 457 U.S. at 373).

2. DeFrance’s argument that the district court should have decreased his

offense level under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2K2.1(b)(2)

2 23-2409 fails. This provision applies where the defendant “possessed all ammunition and

firearms solely for lawful sporting purposes or collection.” U.S.S.G. § 2K2.1(b)(2)

(emphasis added). DeFrance acknowledged in a letter to the probation office that

his pistol “was for protection at home.” Thus, the district court’s finding that

DeFrance did not possess the weapons solely for lawful sporting purposes or

collection was not clearly erroneous. See United States v. Scheu, 83 F.4th 1124,

1126 (9th Cir. 2023) (“A court’s application of the Guidelines to the facts of a case

is reviewed for an abuse of discretion and its factual findings for clear error.”).

DeFrance’s argument that § 2K2.1(b)(2) should be read broadly to

encompass all lawful purposes, including self-defense, is foreclosed by precedent.

See United States v. Lam, 20 F.3d 999, 1002 (9th Cir. 1994); United States v.

Uzelac, 921 F.2d 204, 206 (9th Cir. 1990). The district court therefore properly

rejected this argument. See Scheu, 83 F.4th at 1126 (“We review de novo the

district court’s legal interpretation of the Guidelines.”).

For the reasons stated here and in a concurrently filed opinion, DeFrance’s

convictions are AFFIRMED IN PART and REVERSED IN PART, the sentence

is VACATED, and the case is REMANDED for resentencing or for other

proceedings consistent with the judgment of this court.

3 23-2409