NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10343
Plaintiff-Appellee, D.C. No. 3:18-cr-08052-DGC-1 v.
LOREN JOEL MCREYNOLDS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding
Submitted November 17, 2020** Phoenix, Arizona
Before: TALLMAN, BYBEE, and BADE, Circuit Judges.
Defendant-Appellant Loren Joel McReynolds appeals his forty-six-month
sentence of imprisonment following his conviction by guilty plea to possession of
a firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291,
* 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). and we affirm.
McReynolds argues that the district court erred in finding his illegal
possession of the Bushmaster AR-15 rifle, charged in Count 12 of the indictment—
which remained pending at the time of sentencing—was relevant conduct when
calculating his base offense level. “A district court’s factual determination that
conduct is ‘relevant conduct’ within the meaning of section 1B1.3 of the
Sentencing Guidelines is reviewed for clear error.” United States v. Kahlon, 38
F.3d 467, 470 (9th Cir. 1994) (citation omitted).
At sentencing, the district court denied McReynolds’ objections to the
presentence report’s references to his possession of the Bushmaster AR-15 rifle,
citing U.S.S.G. § 1B1.4, 18 U.S.C. § 3661, and United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam) (holding that “a jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a preponderance of the
evidence”). After finding that “more than a preponderance of the evidence”
established that McReynolds possessed the Bushmaster AR-15 rifle, the district
court concluded that the Bushmaster rifle “is properly taken into account” as
relevant conduct “for purposes of establishing a base offense level of 20.” The
district court did not clearly err in doing so.
“In determining the sentence to impose . . . , the court may consider, without
2 limitation, any information concerning the background, character and conduct of
the defendant, unless otherwise prohibited by law.” U.S.S.G. § 1B1.4 (citing 18
U.S.C. § 3661). Section 1B1.3 of the Guidelines “describes in sweeping language
the conduct that a sentencing court may consider in determining the applicable
guideline range,” Watts, 519 U.S. at 152–53, including as relevant conduct other
offenses that were “part of the same course of conduct or common scheme or plan
as the offense of conviction,” U.S.S.G. § 1B1.3(a)(2). “Relevant conduct in
firearms cases generally arises . . . where the firearms are otherwise legal but the
defendant, usually due to criminal history or prohibited status under federal law, is
not able to legally possess them.” United States v. Vargem, 747 F.3d 724, 732 (9th
Cir. 2014) (citations omitted).
In this case, the district court properly considered McReynolds’ possession
of the Bushmaster AR-15 rifle set forth in Count 12 of the indictment because this
additional felon-in-possession count was “part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2).
Possession of another firearm by a convicted felon is relevant conduct where that
possession is close in time to the offense of conviction. See United States v.
Nichols, 464 F.3d 1117, 1122–24 (9th Cir. 2006). Not only was the offense
charged in Count 12 identical to the offense of conviction—being a felon in
possession of a firearm—but the district court’s findings at sentencing established
3 by a preponderance of the evidence that McReynolds possessed the Bushmaster
AR-15 rifle less than six months after the Remington rifle was seized by law
enforcement on January 13, 2017. The district court’s finding that McReynolds’
illegal possession of the Bushmaster AR-15 rifle within six months of his
possession of the Remington rifle was relevant conduct to his prosecution for felon
in possession was not clearly erroneous.
McReynolds also contends that the district court erred in denying a sentence
reduction pursuant to U.S.S.G. § 2K2.1(b)(2), which provides for a decrease in
offense level to 6 “[i]f the defendant, other than a defendant subject to
subsection . . . (a)(4) . . . , possessed all ammunition and firearms solely for lawful
sporting purposes or collection, and did not unlawfully discharge or otherwise
unlawfully use such firearms or ammunition.” (emphasis added). But because
McReynolds’ base offense level was properly calculated under § 2K2.1(a)(4),
§ 2K2.1(b)(2) is inapplicable.
Finally, McReynolds argues that his forty-six-month sentence was
substantively unreasonable. “[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). “The touchtone of
‘reasonableness’ is whether the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v.
4 Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (internal quotation marks
and citation omitted).
Examining the nature and circumstances of the offense under § 3553(a), the
district court indicated that McReynolds’ conduct exceeded “mere possession of a
gun by somebody convicted of a felony.” The district court found that
McReynolds used the gun in his business, to impress clients, and “[b]y a
preponderance of the evidence . . . to engage in other illegal activities on federal
lands.” The district court remarked that this was a “serious concern” because
McReynolds appeared to “completely” disregard federal law. When considering
McReynolds’ history and characteristics, the district court took note of the
“number of criminal convictions” in his criminal history. In determining the need
for the sentence imposed to be “sufficient but not greater than necessary” to
accomplish the objectives set forth in § 3553(a)(2), the district court concluded that
the most important objectives in this case were to “provide adequate deterrence
from further criminal conduct” and to “promote respect for the law,” noting that
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10343
Plaintiff-Appellee, D.C. No. 3:18-cr-08052-DGC-1 v.
LOREN JOEL MCREYNOLDS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding
Submitted November 17, 2020** Phoenix, Arizona
Before: TALLMAN, BYBEE, and BADE, Circuit Judges.
Defendant-Appellant Loren Joel McReynolds appeals his forty-six-month
sentence of imprisonment following his conviction by guilty plea to possession of
a firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291,
* 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). and we affirm.
McReynolds argues that the district court erred in finding his illegal
possession of the Bushmaster AR-15 rifle, charged in Count 12 of the indictment—
which remained pending at the time of sentencing—was relevant conduct when
calculating his base offense level. “A district court’s factual determination that
conduct is ‘relevant conduct’ within the meaning of section 1B1.3 of the
Sentencing Guidelines is reviewed for clear error.” United States v. Kahlon, 38
F.3d 467, 470 (9th Cir. 1994) (citation omitted).
At sentencing, the district court denied McReynolds’ objections to the
presentence report’s references to his possession of the Bushmaster AR-15 rifle,
citing U.S.S.G. § 1B1.4, 18 U.S.C. § 3661, and United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam) (holding that “a jury’s verdict of acquittal does not
prevent the sentencing court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a preponderance of the
evidence”). After finding that “more than a preponderance of the evidence”
established that McReynolds possessed the Bushmaster AR-15 rifle, the district
court concluded that the Bushmaster rifle “is properly taken into account” as
relevant conduct “for purposes of establishing a base offense level of 20.” The
district court did not clearly err in doing so.
“In determining the sentence to impose . . . , the court may consider, without
2 limitation, any information concerning the background, character and conduct of
the defendant, unless otherwise prohibited by law.” U.S.S.G. § 1B1.4 (citing 18
U.S.C. § 3661). Section 1B1.3 of the Guidelines “describes in sweeping language
the conduct that a sentencing court may consider in determining the applicable
guideline range,” Watts, 519 U.S. at 152–53, including as relevant conduct other
offenses that were “part of the same course of conduct or common scheme or plan
as the offense of conviction,” U.S.S.G. § 1B1.3(a)(2). “Relevant conduct in
firearms cases generally arises . . . where the firearms are otherwise legal but the
defendant, usually due to criminal history or prohibited status under federal law, is
not able to legally possess them.” United States v. Vargem, 747 F.3d 724, 732 (9th
Cir. 2014) (citations omitted).
In this case, the district court properly considered McReynolds’ possession
of the Bushmaster AR-15 rifle set forth in Count 12 of the indictment because this
additional felon-in-possession count was “part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2).
Possession of another firearm by a convicted felon is relevant conduct where that
possession is close in time to the offense of conviction. See United States v.
Nichols, 464 F.3d 1117, 1122–24 (9th Cir. 2006). Not only was the offense
charged in Count 12 identical to the offense of conviction—being a felon in
possession of a firearm—but the district court’s findings at sentencing established
3 by a preponderance of the evidence that McReynolds possessed the Bushmaster
AR-15 rifle less than six months after the Remington rifle was seized by law
enforcement on January 13, 2017. The district court’s finding that McReynolds’
illegal possession of the Bushmaster AR-15 rifle within six months of his
possession of the Remington rifle was relevant conduct to his prosecution for felon
in possession was not clearly erroneous.
McReynolds also contends that the district court erred in denying a sentence
reduction pursuant to U.S.S.G. § 2K2.1(b)(2), which provides for a decrease in
offense level to 6 “[i]f the defendant, other than a defendant subject to
subsection . . . (a)(4) . . . , possessed all ammunition and firearms solely for lawful
sporting purposes or collection, and did not unlawfully discharge or otherwise
unlawfully use such firearms or ammunition.” (emphasis added). But because
McReynolds’ base offense level was properly calculated under § 2K2.1(a)(4),
§ 2K2.1(b)(2) is inapplicable.
Finally, McReynolds argues that his forty-six-month sentence was
substantively unreasonable. “[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). “The touchtone of
‘reasonableness’ is whether the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v.
4 Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (internal quotation marks
and citation omitted).
Examining the nature and circumstances of the offense under § 3553(a), the
district court indicated that McReynolds’ conduct exceeded “mere possession of a
gun by somebody convicted of a felony.” The district court found that
McReynolds used the gun in his business, to impress clients, and “[b]y a
preponderance of the evidence . . . to engage in other illegal activities on federal
lands.” The district court remarked that this was a “serious concern” because
McReynolds appeared to “completely” disregard federal law. When considering
McReynolds’ history and characteristics, the district court took note of the
“number of criminal convictions” in his criminal history. In determining the need
for the sentence imposed to be “sufficient but not greater than necessary” to
accomplish the objectives set forth in § 3553(a)(2), the district court concluded that
the most important objectives in this case were to “provide adequate deterrence
from further criminal conduct” and to “promote respect for the law,” noting that
there “was no respect for the law in [McReynolds’] actions in this case.”
Ultimately, the district court concluded that a two-level upward variance
from the top of the Guidelines’ range to a sentence of forty-six months’
imprisonment was “sufficient but not greater than necessary to promote respect for
the law, to afford adequate deterrence, and to accomplish the other purposes set
5 forth in Section 3553(a).” We do not “have a definite and firm conviction that the
district court committed a clear error of judgment in the conclusion it reached upon
weighing the relevant factors.” United States v. Amezcua-Vasquez, 567 F.3d 1050,
1055 (9th Cir. 2009).
Further, McReynolds’ contention that his sentence is substantively
unreasonable because the district court improperly relied on “conduct that was still
unproven as the remaining charges were still pending for trial” also fails. “[A]
sentencing judge may appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may consider, or the source from
which it may come.” United States v. Christensen, 732 F.3d 1094, 1102 (9th Cir.
2013) (citation omitted). Indeed, “sentencing courts have broad discretion to
consider various kinds of information,” Watts, 519 U.S. at 151, as “[n]o limitation
shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sentence,” 18
U.S.C. § 3661.
AFFIRMED.