NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10326
Plaintiff-Appellee, D.C. No. 2:21-cr-00002-JAD-NJK-1 v.
STEPHON JAMES WHITNEY, AKA Stef MEMORANDUM* B, AKA Stef Bizzle, AKA Stephone James Whitney,
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted March 5, 2024 Las Vegas, Nevada
Before: M. SMITH, BENNETT, and COLLINS, Circuit Judges.
Defendant-Appellant Stephon Whitney appeals his conviction, sentence, and
certain conditions of supervised release. Because the parties are familiar with the
facts, we do not recount them here, except as necessary to provide context to our
ruling. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We affirm Whitney’s conviction and affirm his sentence in large part except as to
the limited issues the parties agree warrant vacatur and remand.
1. The district court did not err in applying a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B). The record supports the district court’s conclusion that
Whitney owned the gun and possessed the marijuana with intent to distribute.
Detectives found around a half pound of marijuana in Whitney’s apartment, a
quantity inconsistent with personal use. In Whitney’s bedroom, investigators found
a loaded gun with an additional magazine, and several thousand dollars in cash
hidden in the headboard of his bed. Outside the bedroom, detectives found a digital
scale; small, clear bags; and two boxes of ammunition containing seventy rounds.
After initially denying responsibility, Whitney stated “[a]ll that belong to me.
Everything.” Against this evidence, Whitney offers only a series of strained
inferences and his fiancée’s inconsistent account that the contraband belonged to
her. The district court was well within its discretion in rejecting Whitney’s version
of events. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)
(“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
The record also supports the district court’s conclusion that Whitney
possessed the gun “in connection” with the drug offense. See U.S.S.G.
§ 2K2.1(b)(6)(B). Contrary to Whitney’s contention, the district court did not rely
2 solely on the proximity of the gun to the drugs and other indicia of drug trafficking
in making its determination. Rather, the district court found that “the totality of the
facts, when combined with the reasonable logical inferences from those facts,”
proved that Whitney possessed the gun in connection with the drug offense, citing
“[t]he quantities, how the pot was stored, the baggies, the scale, and the cash stashed
with the handgun, and the proximity of all of these items to one another in this small
apartment” (emphasis added). The district court reasonably inferred that the purpose
of the gun was to protect the stash of cash and drugs in the bedroom. That inference
was not error.
2. The district court correctly determined Whitney’s criminal history category.
The court did not err in counting a prior conviction for cocaine possession towards
Whitney’s criminal history score. Although a state court set aside Whitney’s cocaine
possession conviction in favor of an amended loitering offense, it was not
“expunged” within the meaning of the guidelines. See U.S.S.G. § 4A1.2(j)
(excluding “expunged” convictions from inclusion in criminal history category
calculations). Application note 10 to that section states that convictions that are “set
aside” or for which the defendant has been pardoned “for reasons unrelated to
innocence or errors of law” nonetheless count towards a defendant’s criminal history
score. U.S.S.G. § 4A1.2(j) cmt. n.10. Whitney does not contest that his conviction
was amended for reasons other than legal error or actual innocence, and the arrest
3 documents and criminal complaint are consistent with Whitney’s commission of
cocaine possession. Cf. United States v. Yepez, 704 F.3d 1087, 1091 (9th Cir. 2012)
(en banc) (“State courts cannot be given the authority to change a defendant’s federal
sentence by issuing a ruling that alters history and the underlying facts.”). The
district court was therefore correct to count the cocaine possession conviction.
Nor did the court err in including Whitney’s misdemeanor conviction for
failure to register his address as a felon, driving without a license, and driving
without proof of insurance towards his criminal history score. Whitney failed to
object to this one-point increase at sentencing, so plain error review applies. See
United States v. Alvirez, 831 F.3d 1115, 1121 (9th Cir. 2016). Under U.S.S.G.
§ 4A1.2(c)(1), convictions for certain enumerated offenses are not counted unless
the defendant received a sentence of more than a year’s probation or thirty days’
imprisonment. The listed offenses include “driving without a license or with a
revoked or suspended license” and “false information to a police officer.” Id.
(cleaned up). The provision applies to the listed offenses, as well as other
unenumerated offenses that are “similar to” a listed offense. Id. When deciding
whether an unenumerated offense is similar to a listed offense, “the court should use
a common sense approach” that considers, inter alia, “the perceived seriousness of
the offense,” “the level of culpability involved,” and “the degree to which the
commission of the offense indicates a likelihood of recurring criminal conduct.” Id.
4 cmt. n.12(A). Although driving without a license is specifically excluded, and
although Whitney is likely correct that driving without proof of insurance is similar
to driving without a license, a felon’s failure to provide an updated address to
authorities is not a “minor administrative offense” analogous to providing false
information to a police officer. Whitney fails to cite any decision of any court for
the proposition that these two offenses are similar. He does not establish plain error.
3. Whitney argues that the district court erred by failing to explicitly address his
request for a downward variance based on a time-served credit he claims he should
have received. He states that his request for parole from state custody was delayed
because he was in physical federal custody and that, had there not been a delay, he
would have received nineteen months of credit for time served. The argument is
unpersuasive. The district court adequately explained the sentence it imposed. In
pronouncing a sentence, the district court “should set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10326
Plaintiff-Appellee, D.C. No. 2:21-cr-00002-JAD-NJK-1 v.
STEPHON JAMES WHITNEY, AKA Stef MEMORANDUM* B, AKA Stef Bizzle, AKA Stephone James Whitney,
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted March 5, 2024 Las Vegas, Nevada
Before: M. SMITH, BENNETT, and COLLINS, Circuit Judges.
Defendant-Appellant Stephon Whitney appeals his conviction, sentence, and
certain conditions of supervised release. Because the parties are familiar with the
facts, we do not recount them here, except as necessary to provide context to our
ruling. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We affirm Whitney’s conviction and affirm his sentence in large part except as to
the limited issues the parties agree warrant vacatur and remand.
1. The district court did not err in applying a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B). The record supports the district court’s conclusion that
Whitney owned the gun and possessed the marijuana with intent to distribute.
Detectives found around a half pound of marijuana in Whitney’s apartment, a
quantity inconsistent with personal use. In Whitney’s bedroom, investigators found
a loaded gun with an additional magazine, and several thousand dollars in cash
hidden in the headboard of his bed. Outside the bedroom, detectives found a digital
scale; small, clear bags; and two boxes of ammunition containing seventy rounds.
After initially denying responsibility, Whitney stated “[a]ll that belong to me.
Everything.” Against this evidence, Whitney offers only a series of strained
inferences and his fiancée’s inconsistent account that the contraband belonged to
her. The district court was well within its discretion in rejecting Whitney’s version
of events. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)
(“Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
The record also supports the district court’s conclusion that Whitney
possessed the gun “in connection” with the drug offense. See U.S.S.G.
§ 2K2.1(b)(6)(B). Contrary to Whitney’s contention, the district court did not rely
2 solely on the proximity of the gun to the drugs and other indicia of drug trafficking
in making its determination. Rather, the district court found that “the totality of the
facts, when combined with the reasonable logical inferences from those facts,”
proved that Whitney possessed the gun in connection with the drug offense, citing
“[t]he quantities, how the pot was stored, the baggies, the scale, and the cash stashed
with the handgun, and the proximity of all of these items to one another in this small
apartment” (emphasis added). The district court reasonably inferred that the purpose
of the gun was to protect the stash of cash and drugs in the bedroom. That inference
was not error.
2. The district court correctly determined Whitney’s criminal history category.
The court did not err in counting a prior conviction for cocaine possession towards
Whitney’s criminal history score. Although a state court set aside Whitney’s cocaine
possession conviction in favor of an amended loitering offense, it was not
“expunged” within the meaning of the guidelines. See U.S.S.G. § 4A1.2(j)
(excluding “expunged” convictions from inclusion in criminal history category
calculations). Application note 10 to that section states that convictions that are “set
aside” or for which the defendant has been pardoned “for reasons unrelated to
innocence or errors of law” nonetheless count towards a defendant’s criminal history
score. U.S.S.G. § 4A1.2(j) cmt. n.10. Whitney does not contest that his conviction
was amended for reasons other than legal error or actual innocence, and the arrest
3 documents and criminal complaint are consistent with Whitney’s commission of
cocaine possession. Cf. United States v. Yepez, 704 F.3d 1087, 1091 (9th Cir. 2012)
(en banc) (“State courts cannot be given the authority to change a defendant’s federal
sentence by issuing a ruling that alters history and the underlying facts.”). The
district court was therefore correct to count the cocaine possession conviction.
Nor did the court err in including Whitney’s misdemeanor conviction for
failure to register his address as a felon, driving without a license, and driving
without proof of insurance towards his criminal history score. Whitney failed to
object to this one-point increase at sentencing, so plain error review applies. See
United States v. Alvirez, 831 F.3d 1115, 1121 (9th Cir. 2016). Under U.S.S.G.
§ 4A1.2(c)(1), convictions for certain enumerated offenses are not counted unless
the defendant received a sentence of more than a year’s probation or thirty days’
imprisonment. The listed offenses include “driving without a license or with a
revoked or suspended license” and “false information to a police officer.” Id.
(cleaned up). The provision applies to the listed offenses, as well as other
unenumerated offenses that are “similar to” a listed offense. Id. When deciding
whether an unenumerated offense is similar to a listed offense, “the court should use
a common sense approach” that considers, inter alia, “the perceived seriousness of
the offense,” “the level of culpability involved,” and “the degree to which the
commission of the offense indicates a likelihood of recurring criminal conduct.” Id.
4 cmt. n.12(A). Although driving without a license is specifically excluded, and
although Whitney is likely correct that driving without proof of insurance is similar
to driving without a license, a felon’s failure to provide an updated address to
authorities is not a “minor administrative offense” analogous to providing false
information to a police officer. Whitney fails to cite any decision of any court for
the proposition that these two offenses are similar. He does not establish plain error.
3. Whitney argues that the district court erred by failing to explicitly address his
request for a downward variance based on a time-served credit he claims he should
have received. He states that his request for parole from state custody was delayed
because he was in physical federal custody and that, had there not been a delay, he
would have received nineteen months of credit for time served. The argument is
unpersuasive. The district court adequately explained the sentence it imposed. In
pronouncing a sentence, the district court “should set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United States,
551 U.S. 338, 356 (2007) (citing United States v. Taylor, 487 U.S. 326, 336–37
(1988)). Because Whitney failed to raise this issue below, we review for plain error.
Whitney has offered no proof that his parole was actually delayed by his federal
case, and at sentencing, his attorney expressed uncertainty as to the interaction
between Whitney’s state and federal sentences. Whitney also fails to explain why
5 the state was unable to process his parole in March 2021, but was nonetheless able
to do so in August 2022. In light of Whitney’s inability to make a clear statement
regarding the purported effect of his federal case on his state parole proceedings, and
the lack of evidence thereto, the district court did not plainly err in declining to
explicitly address this request for a downward variance.
4. The felon-in-possession statute, 18 U.S.C. § 922(g)(1), is facially
constitutional. Nothing in the Supreme Court’s decision in New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), reflects a retreat from the Court’s
earlier statement in District of Columbia v. Heller, 554 U.S. 570 (2008), that
“longstanding prohibitions on the possession of firearms by felons and the mentally
ill” are “presumptively lawful.” Id. at 626 & n.26; see also McDonald v. City of
Chicago, 561 U.S. 742, 786 (2010) (plurality) (noting that the Court “made it clear
in Heller that [its] holding did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons and the mentally
ill’” and that the Court “repeat[s] those assurances here” (citation omitted)). Indeed,
Bruen repeatedly emphasized that it only addressed the Second Amendment rights
of “law-abiding citizens,” a phrase it used some ten times. See 597 U.S. at 9, 15, 26,
29–31, 38, 60, 70. And two of the Justices whose concurrences were essential to the
judgment in Bruen reiterated Heller’s and McDonald’s statements that “prohibitions
on the possession of firearms by felons” are “presumptively lawful.” See id. at 81
6 (Kavanaugh, J., joined by Roberts, C.J., concurring) (citations omitted). Because
such a prohibition remains presumptively constitutional, § 922(g)(1) cannot be said
to be facially unconstitutional.
5. The gang affiliation condition of Whitney’s supervised release is not
unconstitutionally vague or overbroad. Whitney failed to object to the condition at
sentencing, so plain error review applies. Defendants have a “due process right to
conditions of supervised release that are sufficiently clear to inform [them] of what
conduct will result in [them] being returned to prison.” United States v. Guagliardo,
278 F.3d 868, 872 (9th Cir. 2002) (per curiam). A supervised release condition is
unconstitutionally vague when it requires the defendant “to guess about the intended
meaning of the terms of his supervised release.” United States v. Sales, 476 F.3d
732, 737 (9th Cir. 2007). A condition is unconstitutionally overbroad if it restricts
“more of the defendant’s liberty than necessary.” United States v. Wolf Child, 699
F.3d 1082, 1091 (9th Cir. 2012). Whitney cites no cases where a similar condition
has been struck down as impermissibly vague and/or overbroad. Instead, he cites
cases from this court upholding similar provisions prohibiting any “association” or
“connection” with members of criminal gangs. Given the lack of a meaningful
distinction between the conditions upheld in the cases cited by Whitney and the
condition complained of here, Whitney cannot establish plain error.
7 6. The parties suggest that a limited remand is required (1) to correct the special
mental health condition under United States v. Nishida, 53 F.4th 1144 (9th Cir.
2022), and (2) to correct the district court’s imposition of discretionary supervision
conditions under United States v. Montoya, 82 F.4th 640 (9th Cir. 2023). We agree.
We vacate special condition #4 and remand for the district court to modify it in a
manner consistent with Nishida, and, consistent with the remedy in Montoya, we
vacate the district court’s imposition of the discretionary conditions of supervised
release and remand so that the district court may consider whether to impose them,
and if so, include them as part of the oral pronouncement of sentence.
AFFIRMED in part; VACATED in part; REMANDED.