United States v. Dezmaighne McClain

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 2023
• Docket: 22-10181
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10181

Plaintiff-Appellee, D.C. No. 2:19-cr-00165-WBS-1 v.

DEZMAIGHNE MCCLAIN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Argued and Submitted September 13, 2023 San Francisco, California

Before: WALLACE, BOGGS,** and FORREST, Circuit Judges.

Defendant-Appellant, Dezmaighne McClain, appeals from his judgment of

conviction after a jury found him guilty of three counts of illegal possession of

firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction

pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. interpretation of the Sentencing Guidelines de novo, factual findings for clear error,

and application of the Guidelines for abuse of discretion. See United States v.

Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). We review the district

court’s denial of a motion to dismiss an indictment de novo. See United States v.

Dominguez-Caicedo, 40 F.4th 938, 948 (9th Cir. 2022). We affirm.

The district court did not err in interpreting, nor abuse its discretion in

applying, the Sentencing Guidelines to consider an uncharged “ghost gun” in

calculating McClain’s base offense level even without evidence that the gun traveled

in interstate commerce. U.S.S.G. § 2K2.1(a)(1)(A)(ii) requires that the government

prove that the predicate gun met the definition of a firearm as stated in 26 U.S.C.

§ 5845(a)(1). Nothing in section 5845(a) defines firearms as only those that have

traveled in interstate commerce. See United States v. Giannini, 455 F.2d 147, 148

(9th Cir. 1972). McClain’s out-of-circuit authority, United States v. Campbell, 372

F.3d 1179 (10th Cir. 2004), undermines, rather than supports, his contention that the

government must additionally prove that the gun was “unlawfully” possessed under

federal law. That case examined a different Guideline provision (U.S.S.G.

§ 2K2.1(b)(1) and corresponding Application Note 5) explicitly requiring that the

predicate firearm be possessed “unlawfully.” Campbell, 372 F.3d at 1182–83.

Section 2K2.1(a)(1)(A)(ii), however, contains no such requirement. Even if

U.S.S.G. § 2K2.1(b)(1) were applicable here, our precedent forecloses McClain’s

2 argument. See United States v. Munoz, 57 F.4th 683, 686 (9th Cir. 2023) (holding

that a ghost gun possessed unlawfully under federal or state law can satisfy U.S.S.G.

§ 2K2.1(b)(1)).

The district court did not err in considering the predicate “ghost gun” as

“relevant conduct.” The gun was “part of the same course of conduct or common

scheme or plan as the offense of conviction” because it was recovered at the same

time and in the same place as the illegally possessed ammunition and firearms for

which the jury convicted McClain. See United States v. Parlor, 2 F.4th 807, 812

(9th Cir. 2021), quoting U.S.S.G. § 1B1.3(a)(2).

The district court did not err in finding that McClain possessed a stolen

firearm. The government’s production of an uncontroverted report generated from

a government database listing the firearm as stolen was sufficient evidence to satisfy

U.S.S.G. § 2K2.1(b)(4)(A). See id. at 814; United States v. Franklin, 18 F.4th 1105,

1125 (9th Cir. 2021) (holding that “hearsay from a source that is self-demonstrably

reliable is permissible on its own” to establish a fact at sentencing).

The district court did not err in denying McClain’s motion to dismiss the

indictment for outrageous government conduct. McClain’s encounter with the

government’s confidential informant at his state parole office, though arranged

through pretense, was a permissible governmental exercise in “[a]rtifice and

stratagem” to “catch those engaged in criminal enterprises,” Sorrells v. United

3 States, 287 U.S. 435, 441 (1932), and did not involve government conduct that

“violate[d] fundamental fairness” or was “so grossly shocking and so outrageous as

to violate the universal sense of justice.” United States v. Black, 733 F.3d 294, 302

(9th Cir. 2013), quoting United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir.

2011).

AFFIRMED.