NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 24-1619 D.C. No. Plaintiff - Appellee, 2:21-cr-00156-JCM-MDC-1 v. MEMORANDUM* TREVION DARNELL MITCHELL, AKA Tavion Mitchell,
Defendant - Appellant.
Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding
Argued and Submitted December 2, 2025 San Francisco, California
Before: R. NELSON, COLLINS, and VANDYKE, Circuit Judges.
Defendant-Appellant Trevion Mitchell is a serial domestic abuser and felon
who possessed a handgun while kidnapping and repeatedly beating the mother of his
children. Mitchell pled guilty to possessing a firearm as a prohibited person, in
violation of 18 U.S.C. § 922(g)(1), (9), and the district court imposed a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. within-Guidelines sentence of 120 months’ imprisonment. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
We review a district court’s interpretation of the Guidelines and whether a
sentence violates a defendant’s constitutional rights de novo. United States v.
Parlor, 2 F.4th 807, 811 (9th Cir. 2021); United States v. Barlow, 83 F.4th 773, 779
(9th Cir. 2023). We review the district court’s application of the Guidelines to the
facts for abuse of discretion. Parlor, 2 F.4th at 811.
On appeal, Mitchell claims that the court misapplied the United States
Sentencing Guidelines (USSG), violated his Fifth and Sixth Amendment rights, and
procedurally erred. Because Mitchell’s counsel withdrew the argument that he did
not knowingly and voluntarily plead guilty, we address only Mitchell’s remaining
arguments. All of them fail.
1. The district court correctly applied the enhancement for possessing a
firearm “in connection with another felony offense” under USSG § 2K2.1(b)(6)(B)
(2023). To establish this enhancement, the Government must prove by a
preponderance of the evidence 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.
Gonzales, 506 F.3d 940, 947 (9th Cir. 2007) (en banc) (citation omitted).
2 24-1619 On possession, Mitchell is incorrect that “mere constructive possession is
insufficient” to apply § 2K2.1(b)(6)(B). See United States v. Ellis, 241 F.3d 1096,
1099–100 (9th Cir. 2001); United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir.
1997). Police located the loaded handgun on a closet shelf next to “paperwork
belonging to Mitchell along with various other personal effects indicating that
Mitchell reside[d] within the bedroom where the firearm was located.” Mitchell’s
constructive possession of the firearm—as evidenced by its “close proximity” to him
in the closet and the victim’s corroborated testimony—was sufficient to apply the
enhancement. USSG § 2K2.1(b)(6)(B), cmt. n.14(B).
On facilitation, the victim described to 911 dispatchers, and later to police and
a Nevada grand jury, how Mitchell threatened to shoot her with the gun if she did
not come back after she fled the apartment. Mitchell’s threats to use the firearm
showed that the firearm “potentially facilitated” or emboldened Mitchell’s
kidnapping and beating of the victim. See Gonzales, 506 F.3d at 947.
Mitchell’s Fifth and Sixth Amendment arguments are meritless. Defendants
generally have no right to a jury trial or evidentiary hearing at sentencing. Barlow,
83 F.4th at 779–80; United States v. Stein, 127 F.3d 777, 780–81 (9th Cir. 1997).
“Due process requires that some minimal indicia of reliability accompany a hearsay
statement” introduced at sentencing. United States v. Petty, 982 F.2d 1365, 1369
(9th Cir. 1993). But ample evidence corroborated the victim’s story: her 911 call,
3 24-1619 her interview with police, photographs of her injuries and of property damage
Mitchell caused, surveillance video of her attempted escape, text messages between
her and Mitchell, and jail calls between them following his arrest. And, of course,
police ultimately located the firearm near Mitchell’s other effects in the apartment
where he confined the victim and beat her, and to which he dragged her back after
threatening to shoot her during her attempted escape.
2. The district court correctly applied USSG § 5G1.3 (2023), which provides
that if a “state term of imprisonment is anticipated to result from another offense that
is relevant conduct to the instant offense of conviction . . . the sentence for the instant
offense shall be imposed to run concurrently.” USSG § 5G1.3(c). Mitchell’s state
case was still pending at the time of his federal sentencing. Although he had served
1009 days’ jail time in state pretrial detention, Mitchell had not yet been sentenced
to “a term of imprisonment result[ing] from [the state] offense.” USSG § 5G1.3(b).
Thus, the district court explained at sentencing that § 5G1.3(b) “does not apply here
because the defendant has not yet been found guilty, let alone sentenced, in his
related State case.” But, pursuant to § 5G1.3(c), the court correctly ordered
Mitchell’s federal sentence to run concurrently to his anticipated state sentence. In
any event, the Bureau of Prisons credited Mitchell’s time in state pretrial detention
to his federal sentence.
3. Finally, the district court did not procedurally err when it mistakenly
4 24-1619 referred to 120 months’ imprisonment as “a low-end guideline sentence.” See
United States v. Dibe, 776 F.3d 665, 669 (9th Cir. 2015). Because Mitchell did not
object on procedural grounds before the district court, we review for plain error.
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). Far from
showing inconsistency or misinterpreting the Guidelines, the court’s isolated
misstatement did not impact its reasoning or sentence. The court necessarily
acknowledged the severity of Mitchell’s offense conduct when it overruled his
various objections, and it heard the Government argue why Mitchell’s multiple
domestic violence convictions, his “particularly egregious and violent” conduct, and
his witness intimidation all justified handing down “a 120-month sentence” at “the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 24-1619 D.C. No. Plaintiff - Appellee, 2:21-cr-00156-JCM-MDC-1 v. MEMORANDUM* TREVION DARNELL MITCHELL, AKA Tavion Mitchell,
Defendant - Appellant.
Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding
Argued and Submitted December 2, 2025 San Francisco, California
Before: R. NELSON, COLLINS, and VANDYKE, Circuit Judges.
Defendant-Appellant Trevion Mitchell is a serial domestic abuser and felon
who possessed a handgun while kidnapping and repeatedly beating the mother of his
children. Mitchell pled guilty to possessing a firearm as a prohibited person, in
violation of 18 U.S.C. § 922(g)(1), (9), and the district court imposed a
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. within-Guidelines sentence of 120 months’ imprisonment. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
We review a district court’s interpretation of the Guidelines and whether a
sentence violates a defendant’s constitutional rights de novo. United States v.
Parlor, 2 F.4th 807, 811 (9th Cir. 2021); United States v. Barlow, 83 F.4th 773, 779
(9th Cir. 2023). We review the district court’s application of the Guidelines to the
facts for abuse of discretion. Parlor, 2 F.4th at 811.
On appeal, Mitchell claims that the court misapplied the United States
Sentencing Guidelines (USSG), violated his Fifth and Sixth Amendment rights, and
procedurally erred. Because Mitchell’s counsel withdrew the argument that he did
not knowingly and voluntarily plead guilty, we address only Mitchell’s remaining
arguments. All of them fail.
1. The district court correctly applied the enhancement for possessing a
firearm “in connection with another felony offense” under USSG § 2K2.1(b)(6)(B)
(2023). To establish this enhancement, the Government must prove by a
preponderance of the evidence 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.
Gonzales, 506 F.3d 940, 947 (9th Cir. 2007) (en banc) (citation omitted).
2 24-1619 On possession, Mitchell is incorrect that “mere constructive possession is
insufficient” to apply § 2K2.1(b)(6)(B). See United States v. Ellis, 241 F.3d 1096,
1099–100 (9th Cir. 2001); United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir.
1997). Police located the loaded handgun on a closet shelf next to “paperwork
belonging to Mitchell along with various other personal effects indicating that
Mitchell reside[d] within the bedroom where the firearm was located.” Mitchell’s
constructive possession of the firearm—as evidenced by its “close proximity” to him
in the closet and the victim’s corroborated testimony—was sufficient to apply the
enhancement. USSG § 2K2.1(b)(6)(B), cmt. n.14(B).
On facilitation, the victim described to 911 dispatchers, and later to police and
a Nevada grand jury, how Mitchell threatened to shoot her with the gun if she did
not come back after she fled the apartment. Mitchell’s threats to use the firearm
showed that the firearm “potentially facilitated” or emboldened Mitchell’s
kidnapping and beating of the victim. See Gonzales, 506 F.3d at 947.
Mitchell’s Fifth and Sixth Amendment arguments are meritless. Defendants
generally have no right to a jury trial or evidentiary hearing at sentencing. Barlow,
83 F.4th at 779–80; United States v. Stein, 127 F.3d 777, 780–81 (9th Cir. 1997).
“Due process requires that some minimal indicia of reliability accompany a hearsay
statement” introduced at sentencing. United States v. Petty, 982 F.2d 1365, 1369
(9th Cir. 1993). But ample evidence corroborated the victim’s story: her 911 call,
3 24-1619 her interview with police, photographs of her injuries and of property damage
Mitchell caused, surveillance video of her attempted escape, text messages between
her and Mitchell, and jail calls between them following his arrest. And, of course,
police ultimately located the firearm near Mitchell’s other effects in the apartment
where he confined the victim and beat her, and to which he dragged her back after
threatening to shoot her during her attempted escape.
2. The district court correctly applied USSG § 5G1.3 (2023), which provides
that if a “state term of imprisonment is anticipated to result from another offense that
is relevant conduct to the instant offense of conviction . . . the sentence for the instant
offense shall be imposed to run concurrently.” USSG § 5G1.3(c). Mitchell’s state
case was still pending at the time of his federal sentencing. Although he had served
1009 days’ jail time in state pretrial detention, Mitchell had not yet been sentenced
to “a term of imprisonment result[ing] from [the state] offense.” USSG § 5G1.3(b).
Thus, the district court explained at sentencing that § 5G1.3(b) “does not apply here
because the defendant has not yet been found guilty, let alone sentenced, in his
related State case.” But, pursuant to § 5G1.3(c), the court correctly ordered
Mitchell’s federal sentence to run concurrently to his anticipated state sentence. In
any event, the Bureau of Prisons credited Mitchell’s time in state pretrial detention
to his federal sentence.
3. Finally, the district court did not procedurally err when it mistakenly
4 24-1619 referred to 120 months’ imprisonment as “a low-end guideline sentence.” See
United States v. Dibe, 776 F.3d 665, 669 (9th Cir. 2015). Because Mitchell did not
object on procedural grounds before the district court, we review for plain error.
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). Far from
showing inconsistency or misinterpreting the Guidelines, the court’s isolated
misstatement did not impact its reasoning or sentence. The court necessarily
acknowledged the severity of Mitchell’s offense conduct when it overruled his
various objections, and it heard the Government argue why Mitchell’s multiple
domestic violence convictions, his “particularly egregious and violent” conduct, and
his witness intimidation all justified handing down “a 120-month sentence” at “the
high end of the standard guideline range.” The court also heard Mitchell’s counsel
argue for “a lower sentence than 120 months, significantly lower.” When the court
sentenced Mitchell, it confirmed that its decision was based on “statements of
counsel for the Government, counsel for the defendant,” “the pre-sentence report,”
and “the factors set forth in 18 U.S.C. § 3553(a).” The record shows a reasoned,
intentional decision to impose a high-end Guidelines sentence of 120 months’
imprisonment. Thus, any error from the district court’s misstatement did not affect
Mitchell’s substantial rights. See United States v. Dallman, 533 F.3d 755, 761–62
(9th Cir. 2008).
AFFIRMED.
5 24-1619