NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10086
Plaintiff-Appellee, D.C. No. 1:20-cr-00207-JLT-SKO-1 v.
LANE KELLY WHITTENBERG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding
Submitted August 25, 2023** San Francisco, California
Before: BUMATAY, KOH, and DESAI, Circuit Judges.
Lane Whittenberg pleaded guilty to one count of violating 18 U.S.C.
§ 922(g)(1), Felon in Possession of a Firearm. Whittenberg was sentenced to 70
months of imprisonment. He appeals the district court’s enhancement of his
sentence under the United States Sentencing Guidelines (U.S.S.G.)
* 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).
- § 2K2.1(b)(6)(B). He also claims that his Fifth and Sixth Amendment rights were
violated by the government’s introduction of new evidence at sentencing and its
late disclosure of discovery. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not abuse its discretion in enhancing Whittenberg’s
sentence under U.S.S.G. § 2K2.1(b)(6)(B). Whittenberg raises three challenges
relating to the enhancement: (A) whether the district court applied the appropriate
burden of proof; (B) whether the district court should have held an evidentiary
hearing; and (C) whether the evidence showed that he committed the alleged
crimes.
A. The district court applied the correct burden of proof. Before the
district court, Whittenberg conceded that the proper burden of proof was
preponderance of the evidence. However, he now asserts that a heightened burden
applies. We review for plain error. United States v. Depue, 912 F.3d 1227, 1234
(9th Cir. 2019). “As ‘a general rule,’ factual findings underlying a sentencing
enhancement need only be found by a preponderance of the evidence.” United
States v. Lonich, 23 F.4th 881, 910 (9th Cir. 2022) (citation omitted). However, in
some circumstances, we have applied a heightened burden when “the enhanced
sentence is four or more offense levels higher” and the enhanced sentence is “more
than double the initial sentencing range.” Id. at 911–12 (outlining the factors to be
- 2 considered but noting that the determination turns on these two factors). In this
case, the enhancement increased the offence level by four, not more. Further, the
length of the sentence was not doubled. With the enhancement, the sentencing
guideline range increased to 63–78 months from 41–51 months. Thus, there was no
plain error in applying the preponderance of the evidence standard.
B. Regardless of whether plain error or abuse of discretion applies, see
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (standard of review), the
district court was not required to conduct an evidentiary hearing to resolve any
alleged factual disputes. The district court recognized that there were some
discrepancies in the victims’ statements but concluded that the video evidence
confirmed the witnesses’ narratives about the alleged felony offenses of criminal
threats and discharging a firearm with gross negligence. Therefore, an evidentiary
hearing would not have altered the district court’s findings. Accordingly, the
district court did not abuse its discretion or commit plain error in not holding an
evidentiary hearing.
C. The district court did not clearly err in finding that Whittenberg
committed the felony offenses of discharging a firearm with gross negligence and
criminal threats. Even though both of these offenses are “wobblers” under
California law, “a ‘wobbler’ is presumptively a felony and ‘remains a felony
except when the discretion is actually exercised’ to make the crime a misdemeanor.
- 3 Ewing v. California, 538 U.S. 11, 16 (2003) (quoting People v. Williams, 163 P.2d
692, 696 (Cal. 1945)). Thus, the district court properly considered the conduct to
be felony offenses.1
The videos and the police reports support the district court’s conclusion that
Whittenberg discharged a firearm with gross negligence. California Penal Code
section 246.3(a) provides:
any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense.
To be subjected to a four-level sentencing enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B), a defendant must have “used or possessed any firearm or
ammunition in connection with another felony offense.” Thus, the district court
must find that the defendant committed another felony offense using the firearm in
a manner that “facilitated or had the potential of facilitating” the defendant’s
felonious conduct. See United States v. Routon, 25 F.3d 815, 817 n.1 (9th Cir.
1994). Alternatively, a defendant can be subjected to the enhancement if he or she
“possessed or transferred any firearm or ammunition with knowledge, intent, or
reason to believe that it would be used or possessed in connection with another
1 Because only one felony is required for the four-level enhancement to apply, we need not address the findings for both felony offenses. See U.S.S.G. § 2K2.1(b)(6)(B). Therefore, we only address discharging a firearm with gross negligence.
- 4 felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). In other words, a defendant need not
have actually committed another felony, if there is “evidence to show that he had a
‘firm intent’ to use the [firearm] in connection with another felony.” United States
v. Noster, 590 F.3d 624, 634 (9th Cir. 2009).
Whittenberg challenges the district court’s findings that he committed this
felony offense. Whittenberg relies upon Noster and United States v. Jimison, 493
F.3d 1148 (9th Cir. 2007), to assert that, because an element of the crime is gross
negligence, which cannot be committed purposefully, there was no evidence of
intent to use the gun to commit the felony. This argument lacks merit. Intent is not
relevant when a defendant actually committed the felony offense. Both Noster and
Jimison involved defendants who had not actually committed another felony
offense but were alleged to have had the intent to commit another felony. See
Noster, 590 F.3d at 635 (noting that Noster “planned to use the incendiary devices
to bomb companies or commodities in a scheme to make money” (emphasis
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10086
Plaintiff-Appellee, D.C. No. 1:20-cr-00207-JLT-SKO-1 v.
LANE KELLY WHITTENBERG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, District Judge, Presiding
Submitted August 25, 2023** San Francisco, California
Before: BUMATAY, KOH, and DESAI, Circuit Judges.
Lane Whittenberg pleaded guilty to one count of violating 18 U.S.C.
§ 922(g)(1), Felon in Possession of a Firearm. Whittenberg was sentenced to 70
months of imprisonment. He appeals the district court’s enhancement of his
sentence under the United States Sentencing Guidelines (U.S.S.G.)
* 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).
- § 2K2.1(b)(6)(B). He also claims that his Fifth and Sixth Amendment rights were
violated by the government’s introduction of new evidence at sentencing and its
late disclosure of discovery. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not abuse its discretion in enhancing Whittenberg’s
sentence under U.S.S.G. § 2K2.1(b)(6)(B). Whittenberg raises three challenges
relating to the enhancement: (A) whether the district court applied the appropriate
burden of proof; (B) whether the district court should have held an evidentiary
hearing; and (C) whether the evidence showed that he committed the alleged
crimes.
A. The district court applied the correct burden of proof. Before the
district court, Whittenberg conceded that the proper burden of proof was
preponderance of the evidence. However, he now asserts that a heightened burden
applies. We review for plain error. United States v. Depue, 912 F.3d 1227, 1234
(9th Cir. 2019). “As ‘a general rule,’ factual findings underlying a sentencing
enhancement need only be found by a preponderance of the evidence.” United
States v. Lonich, 23 F.4th 881, 910 (9th Cir. 2022) (citation omitted). However, in
some circumstances, we have applied a heightened burden when “the enhanced
sentence is four or more offense levels higher” and the enhanced sentence is “more
than double the initial sentencing range.” Id. at 911–12 (outlining the factors to be
- 2 considered but noting that the determination turns on these two factors). In this
case, the enhancement increased the offence level by four, not more. Further, the
length of the sentence was not doubled. With the enhancement, the sentencing
guideline range increased to 63–78 months from 41–51 months. Thus, there was no
plain error in applying the preponderance of the evidence standard.
B. Regardless of whether plain error or abuse of discretion applies, see
United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001) (standard of review), the
district court was not required to conduct an evidentiary hearing to resolve any
alleged factual disputes. The district court recognized that there were some
discrepancies in the victims’ statements but concluded that the video evidence
confirmed the witnesses’ narratives about the alleged felony offenses of criminal
threats and discharging a firearm with gross negligence. Therefore, an evidentiary
hearing would not have altered the district court’s findings. Accordingly, the
district court did not abuse its discretion or commit plain error in not holding an
evidentiary hearing.
C. The district court did not clearly err in finding that Whittenberg
committed the felony offenses of discharging a firearm with gross negligence and
criminal threats. Even though both of these offenses are “wobblers” under
California law, “a ‘wobbler’ is presumptively a felony and ‘remains a felony
except when the discretion is actually exercised’ to make the crime a misdemeanor.
- 3 Ewing v. California, 538 U.S. 11, 16 (2003) (quoting People v. Williams, 163 P.2d
692, 696 (Cal. 1945)). Thus, the district court properly considered the conduct to
be felony offenses.1
The videos and the police reports support the district court’s conclusion that
Whittenberg discharged a firearm with gross negligence. California Penal Code
section 246.3(a) provides:
any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense.
To be subjected to a four-level sentencing enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B), a defendant must have “used or possessed any firearm or
ammunition in connection with another felony offense.” Thus, the district court
must find that the defendant committed another felony offense using the firearm in
a manner that “facilitated or had the potential of facilitating” the defendant’s
felonious conduct. See United States v. Routon, 25 F.3d 815, 817 n.1 (9th Cir.
1994). Alternatively, a defendant can be subjected to the enhancement if he or she
“possessed or transferred any firearm or ammunition with knowledge, intent, or
reason to believe that it would be used or possessed in connection with another
1 Because only one felony is required for the four-level enhancement to apply, we need not address the findings for both felony offenses. See U.S.S.G. § 2K2.1(b)(6)(B). Therefore, we only address discharging a firearm with gross negligence.
- 4 felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). In other words, a defendant need not
have actually committed another felony, if there is “evidence to show that he had a
‘firm intent’ to use the [firearm] in connection with another felony.” United States
v. Noster, 590 F.3d 624, 634 (9th Cir. 2009).
Whittenberg challenges the district court’s findings that he committed this
felony offense. Whittenberg relies upon Noster and United States v. Jimison, 493
F.3d 1148 (9th Cir. 2007), to assert that, because an element of the crime is gross
negligence, which cannot be committed purposefully, there was no evidence of
intent to use the gun to commit the felony. This argument lacks merit. Intent is not
relevant when a defendant actually committed the felony offense. Both Noster and
Jimison involved defendants who had not actually committed another felony
offense but were alleged to have had the intent to commit another felony. See
Noster, 590 F.3d at 635 (noting that Noster “planned to use the incendiary devices
to bomb companies or commodities in a scheme to make money” (emphasis
added)); Jimison, 493 F.3d at 1151 (explaining that there was insufficient evidence
that the defendant had “formed a firm intent” to commit a felony offense). Here,
the district court found that Whittenberg’s discharge of the firearm was willful,
and, in discharging the firearm, he placed other people at risk because it was a
“populated area.” Thus, Whittenberg actually committed this felony, therefore his
intent to commit a felony was not relevant. See Noster, 590 F.3d at 634.
- 5 Accordingly, the district court did not clearly err in finding Whittenberg
committed this felony offense and did not abuse its discretion in enhancing
Whittenberg’s sentence.
2. The government did not violate Whittenberg’s Fifth Amendment right to due
process or his Sixth Amendment right to notice. The government argued at
sentencing that Whittenberg’s actions of firing a gun towards an unknown
individual was not accounted for in the Presentence Report (PSR). The government
also submitted evidence that a bullet had gone through a window on the night of
the incident. Even assuming that government’s speculative comments amounted to
improper conduct, the district court did not accept the government’s assertions
when it imposed its sentence. Thus, there was no harm to Whittenberg. See 28
U.S.C. § 2111 (outlining that “the court shall give judgment after an examination
of the record without regard to errors or defects which do not affect the substantial
rights of the parties”).
To the extent that Whittenberg asserts that the government’s late disclosure
of evidence violated his rights, any error was harmless. Whittenberg obtained the
discovery prior to his guilty plea, yet he did not make any objections and
proceeded to change his plea. At sentencing, Whittenberg noted that the
government turned over the discovery late, but admitted that an earlier disclosure
would not have “changed anything in light of the underlying offense.” Thus,
- 6 Whittenberg has failed to establish any prejudice. See United States v. Dupuy, 760
F.2d 1492, 1497 (9th Cir. 1985).
AFFIRMED.
- 7