United States v. Kennedy

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2025
• Docket: 23-2951
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2951 D.C. No. Plaintiff - Appellee, 1:23-cr-00061-SPW-1 v. MEMORANDUM* DAVID LEE KENNEDY, Jr.,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted May 29, 2025** San Francisco, California

Before: CHRISTEN and NGUYEN, Circuit Judges, and EZRA, District Judge.***

Defendant-Appellant David Lee Kennedy was arrested for attempting to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** On July 16, 2024, the court stayed this matter pending the resolution of United States v. Duarte, No. 22-50048, 2025 WL 1352411 (9th Cir. May 9, 2025). Dkt. # 18. The motion to lift the stay, filed on May 16, 2025, Dkt. # 23, is granted and the stay is lifted. The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. steal a vehicle from a car dealership. When Kennedy was arrested, officers

recovered a loaded semi-automatic pistol from the driver’s seat where Kennedy

had been sitting. Kennedy pled guilty to being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). He challenges on appeal the district court’s

application of a four-level enhancement under the United States Sentencing

Guidelines (“USSG”) § 2K2.1(b)(6)(B), which applies if the defendant “used or

possessed any firearm . . . in connection with another felony offense.” We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court’s “application of the Sentencing Guidelines to the facts of

a given case should be reviewed for abuse of discretion.” United States v. Gasca-

Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). “A district court abuses its

discretion when it fails to apply the correct legal standard or bases its decision on

unreasonable findings of fact.” Briseño v. Henderson, 998 F.3d 1014, 1022 (9th

Cir. 2021) (cleaned up). The district court’s factual findings are reviewed for clear

error. United States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021).

To establish that a firearm was possessed “in connection with” an offense,

the government must show that “the firearm was possessed in a manner that

permits an inference that it facilitated or potentially facilitated—i.e., had some

potential emboldening role in—a defendant’s felonious conduct.” United States v.

Routon, 25 F.3d 815, 819 (9th Cir. 1994).

2 23-2951 The district court found that Kennedy’s firearm was “in close proximity with

easy access,” as the gun was found on the seat Kennedy had occupied while

attempting to hotwire the vehicle. See id. (finding that the enhancement was

properly applied to an interstate car thief where the defendant “kept [the gun]

within a short distance” when driving stolen vehicles). The district court further

found that Kennedy “made a conscious decision to bring a firearm with him when

attempting to steal a vehicle.” See United States v. Collins, 90 F.3d 1420, 1430

(9th Cir. 1996) (finding that “[i]t was not clearly erroneous to infer that the pistol

had some emboldening role” in the defendant’s attempted burglary). That

Kennedy may have been inebriated does not negate the district court’s finding that

he made the conscious decision to bring a gun. It was not clearly erroneous for the

district court to conclude that there was “evidence of the firearm potentially

facilitating the theft of an automobile,” and that “the firearm would have the

potential of facilitating that theft if someone were to try to prevent the theft.” See

United States v. Grimaldo, 993 F.3d 1077, 1083 (9th Cir. 2021) (“Stealing a car

invites the risk that the owner, let alone the police, will seek to repossess it. While

a gun does not mitigate the risk—in fact, it may heighten it—it helps remove

barriers.”). As a result, the district court did not abuse its discretion in applying the

firearm enhancement.

AFFIRMED.

3 23-2951