NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 30 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 25-1068 D.C. No. Plaintiff - Appellee, 2:24-cr-00045-TOR-1 v. MEMORANDUM* NICHOLAS J. KLOEPFEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding
Submitted April 24, 2026** Seattle, Washington
Before: W. FLETCHER and KOH, Circuit Judges, and RAYES, District Judge.***
Nicholas J. Kloepfel appeals from his 96-month sentence, following a guilty
plea, for one count of felon in possession of a firearm in violation of 18 U.S.C.
* 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). *** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. §§ 922(g)(1), 924(a)(8). Kloepfel argues that the district court committed multiple
procedural errors and that his sentence is substantively unreasonable. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
On appeal, “only a procedurally erroneous or substantively unreasonable
sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc) (citing Rita v. United States, 551 U.S. 338, 341 (2007)). When an
appellant objects to procedural errors at sentencing, we review for abuse of
discretion. Id. Absent objection before the district court, we review alleged
procedural errors for plain error. United States v. Blinkinsop, 606 F.3d 1110, 1114
(9th Cir. 2010); Holguin-Hernandez v. United States, 589 U.S. 169, 171 (2020).
“[T]he substantive reasonableness of a sentence—whether objected to or not at
sentencing—is reviewed for abuse of discretion.” United States v. Autery, 555 F.3d
864, 871 (9th Cir. 2009).
We first consider whether the district court committed a procedural error,
and then we consider whether the sentence is substantively reasonable. Carty, 520
F.3d at 993 (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Procedural error
includes failing to calculate (or calculating incorrectly) the proper U.S. Sentencing
Guidelines (“Guidelines”) range, treating the Guidelines as mandatory, failing to
consider the factors from 18 U.S.C. § 3553(a), choosing a sentence based on
clearly erroneous facts, or failing to explain a selected sentence, including any
2 25-1068 deviation from the Guidelines range. Id.
1. The district court did not procedurally err by imposing an above-
Guidelines sentence based in part on the fact that Kloepfel had multiple firearms, a
fact which was already accounted for in Kloepfel’s total offense level pursuant to
U.S.S.G. § 2K2.1(b)(1)(A). In his reply, Kloepfel concedes this alleged error
should be considered in our review of the sentence’s substantive reasonableness.
2. The district court did not procedurally err by jumping from Criminal
History Category II to Category VI rather than moving through the categories
incrementally. The district court was not under an obligation to move through the
criminal history categories incrementally. After United States v. Booker, 543 U.S.
220 (2005), “the scheme of downward and upward ‘departures’ [is] essentially
replaced by the requirement that judges impose a ‘reasonable’ sentence.” United
States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006); see also United States v.
Lichtenberg, 631 F.3d 1021, 1027 n.8 (9th Cir. 2011) (noting our “review of
upward departures from the advisory Guidelines merges with [our] review of the
ultimate sentence for reasonableness, and is not reviewed as a separate issue”).
Accordingly, we will not review this alleged error independently of our review of
the substantive reasonableness of Kloepfel’s sentence.
3. The district court did not procedurally err by applying an “extreme
conduct” departure. We note that the district court never mentioned conduct
3 25-1068 toward a victim as a basis for the sentence, see U.S.S.G. § 5K2.8, but rather
referred to Kloepfel’s conduct as extreme because he had multiple firearms and
drugs were present. But again, after Booker, “the scheme of downward and upward
‘departures’ [is] essentially replaced by the requirement that judges impose a
‘reasonable’ sentence,” Mohamed, 459 F.3d at 986, and we will not review this
alleged error independently of our review of the substantive reasonableness of the
sentence.
4. The district court did not procedurally err by providing Kloepfel
inadequate notice of the departure. Because Kloepfel did object to the adequacy of
notice, we review for an abuse of discretion. Carty, 520 F.3d at 993. Federal Rule
of Criminal Procedure 32(h) provides: “Before the court may depart from the
applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the court must give the
parties reasonable notice that it is contemplating such a departure.” The
Government’s prehearing submissions provided Kloepfel notice of the ground for
departure and so the district court was not required to provide additional notice.
Furthermore, Kloepfel’s counsel was able to address the Government’s arguments
for the departure at the sentencing hearing. See Irizarry v. United States, 553 U.S.
708, 715 (2008) (“Sound practice dictates that judges in all cases should make sure
that the information provided to the parties in advance of the hearing, and in the
4 25-1068 hearing itself, has given them an adequate opportunity to confront and debate the
relevant issues.”).
5. The district court did not procedurally err by inadequately explaining
the 96-month sentence. See Carty, 520 F.3d at 993 (noting that it would be
procedural error “to fail adequately to explain the sentence selected, including any
deviation from the Guidelines range”). Because Kloepfel did not object to the
adequacy of the district court’s explanation, we review for plain error. Holguin-
Hernandez, 589 U.S. at 171. The district court explained that it imposed the
sentence because of Kloepfel’s repeated engagement in illegal conduct, which was
inadequately reflected in his criminal history, and because Kloepfel’s conduct was
extreme in the district court’s view because it involved multiple firearms and the
presence of drugs.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 30 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 25-1068 D.C. No. Plaintiff - Appellee, 2:24-cr-00045-TOR-1 v. MEMORANDUM* NICHOLAS J. KLOEPFEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding
Submitted April 24, 2026** Seattle, Washington
Before: W. FLETCHER and KOH, Circuit Judges, and RAYES, District Judge.***
Nicholas J. Kloepfel appeals from his 96-month sentence, following a guilty
plea, for one count of felon in possession of a firearm in violation of 18 U.S.C.
* 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). *** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. §§ 922(g)(1), 924(a)(8). Kloepfel argues that the district court committed multiple
procedural errors and that his sentence is substantively unreasonable. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
On appeal, “only a procedurally erroneous or substantively unreasonable
sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc) (citing Rita v. United States, 551 U.S. 338, 341 (2007)). When an
appellant objects to procedural errors at sentencing, we review for abuse of
discretion. Id. Absent objection before the district court, we review alleged
procedural errors for plain error. United States v. Blinkinsop, 606 F.3d 1110, 1114
(9th Cir. 2010); Holguin-Hernandez v. United States, 589 U.S. 169, 171 (2020).
“[T]he substantive reasonableness of a sentence—whether objected to or not at
sentencing—is reviewed for abuse of discretion.” United States v. Autery, 555 F.3d
864, 871 (9th Cir. 2009).
We first consider whether the district court committed a procedural error,
and then we consider whether the sentence is substantively reasonable. Carty, 520
F.3d at 993 (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Procedural error
includes failing to calculate (or calculating incorrectly) the proper U.S. Sentencing
Guidelines (“Guidelines”) range, treating the Guidelines as mandatory, failing to
consider the factors from 18 U.S.C. § 3553(a), choosing a sentence based on
clearly erroneous facts, or failing to explain a selected sentence, including any
2 25-1068 deviation from the Guidelines range. Id.
1. The district court did not procedurally err by imposing an above-
Guidelines sentence based in part on the fact that Kloepfel had multiple firearms, a
fact which was already accounted for in Kloepfel’s total offense level pursuant to
U.S.S.G. § 2K2.1(b)(1)(A). In his reply, Kloepfel concedes this alleged error
should be considered in our review of the sentence’s substantive reasonableness.
2. The district court did not procedurally err by jumping from Criminal
History Category II to Category VI rather than moving through the categories
incrementally. The district court was not under an obligation to move through the
criminal history categories incrementally. After United States v. Booker, 543 U.S.
220 (2005), “the scheme of downward and upward ‘departures’ [is] essentially
replaced by the requirement that judges impose a ‘reasonable’ sentence.” United
States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006); see also United States v.
Lichtenberg, 631 F.3d 1021, 1027 n.8 (9th Cir. 2011) (noting our “review of
upward departures from the advisory Guidelines merges with [our] review of the
ultimate sentence for reasonableness, and is not reviewed as a separate issue”).
Accordingly, we will not review this alleged error independently of our review of
the substantive reasonableness of Kloepfel’s sentence.
3. The district court did not procedurally err by applying an “extreme
conduct” departure. We note that the district court never mentioned conduct
3 25-1068 toward a victim as a basis for the sentence, see U.S.S.G. § 5K2.8, but rather
referred to Kloepfel’s conduct as extreme because he had multiple firearms and
drugs were present. But again, after Booker, “the scheme of downward and upward
‘departures’ [is] essentially replaced by the requirement that judges impose a
‘reasonable’ sentence,” Mohamed, 459 F.3d at 986, and we will not review this
alleged error independently of our review of the substantive reasonableness of the
sentence.
4. The district court did not procedurally err by providing Kloepfel
inadequate notice of the departure. Because Kloepfel did object to the adequacy of
notice, we review for an abuse of discretion. Carty, 520 F.3d at 993. Federal Rule
of Criminal Procedure 32(h) provides: “Before the court may depart from the
applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the court must give the
parties reasonable notice that it is contemplating such a departure.” The
Government’s prehearing submissions provided Kloepfel notice of the ground for
departure and so the district court was not required to provide additional notice.
Furthermore, Kloepfel’s counsel was able to address the Government’s arguments
for the departure at the sentencing hearing. See Irizarry v. United States, 553 U.S.
708, 715 (2008) (“Sound practice dictates that judges in all cases should make sure
that the information provided to the parties in advance of the hearing, and in the
4 25-1068 hearing itself, has given them an adequate opportunity to confront and debate the
relevant issues.”).
5. The district court did not procedurally err by inadequately explaining
the 96-month sentence. See Carty, 520 F.3d at 993 (noting that it would be
procedural error “to fail adequately to explain the sentence selected, including any
deviation from the Guidelines range”). Because Kloepfel did not object to the
adequacy of the district court’s explanation, we review for plain error. Holguin-
Hernandez, 589 U.S. at 171. The district court explained that it imposed the
sentence because of Kloepfel’s repeated engagement in illegal conduct, which was
inadequately reflected in his criminal history, and because Kloepfel’s conduct was
extreme in the district court’s view because it involved multiple firearms and the
presence of drugs. On this record, “[w]e have no difficulty in discerning the district
court’s reasons for imposing the sentence that it did.” United States v. Leonard,
483 F.3d 635, 637 (9th Cir. 2007).
6. Finally, Kloepfel challenges the substantive reasonableness of his
sentence. In considering the substantive reasonableness of a sentence, we look to
the totality of the circumstances. See Carty, 520 F.3d at 993. We “should only
vacate a sentence if the district court’s decision not to impose a lesser sentence was
‘illogical, implausible, or without support in inferences that may be drawn from the
facts in the record.’” United States v. Laurienti, 731 F.3d 967, 976 (9th Cir. 2013)
5 25-1068 (quoting United States v. Treadwell, 593 F.3d 990, 1011 (9th Cir. 2010)).
For the offense of conviction, Kloepfel had three firearms and drugs were
present. Kloepfel committed this offense while on supervised release and within a
year of his release from a 195-month sentence. Additionally, Kloepfel allegedly
committed various other supervised release violations within that year resulting in
the need to issue an arrest warrant. Kloepfel also has five other criminal
convictions from before his 195-month sentence that did not score criminal history
points in his presentence investigation report. The district court explicitly
referenced Kloepfel’s “criminal history inadequacy,” his “repeated illegal
conduct,” his “extreme conduct,” and the fact he “had multiple firearms and
drugs.” Kloepfel’s sentence is substantively reasonable considering the sentencing
factors and the totality of the circumstances. The district court did not abuse its
discretion.
AFFIRMED.
6 25-1068