United States v. Donavan Gomez

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2019
• Docket: 18-30235
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30235

Plaintiff-Appellee, D.C. No. 2:18-cr-00137-DCN-1

v. MEMORANDUM* DONAVAN LEE GOMEZ,

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges. Donovan Lee Gomez appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty-plea conviction for

unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have

jurisdiction under 28 U.S.C. § 1291, and we 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). Gomez contends that the district court erred by applying a four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in

connection with another felony offense. We review the district court’s factual

findings for clear error, and its application of the Guidelines to the facts of a given

case for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170

(9th Cir. 2017) (en banc). The record reflects that law enforcement located a

firearm in close proximity to a safe containing multiple controlled substances that

Gomez’s girlfriend admitted to possessing with intent to sell. The record further

reflects that Gomez provided the funds to purchase both the firearm and the

controlled substances and served as a liaison between his girlfriend and the drug

supplier. Accordingly, the district court did not abuse its discretion in concluding

by a preponderance of the evidence that Gomez’s possession of the firearm had the

potential of facilitating another felony offense. See U.S.S.G. § 2K2.1 cmt.

n.14(B); United States v. Chadwell, 798 F.3d 910, 916-17 (9th Cir. 2015).

Moreover, contrary to Gomez’s contention, the district court did not err by relying

on uncontested factual assertions in the presentence report to conclude that the

enhancement applied. See Fed. R. Crim. P. 32(i)(3)(A); United States v. Snipe,

515 F.3d 947, 955 (9th Cir. 2008).

AFFIRMED.

2 18-30235