United States v. Lucas

70 F.4th 1218

UNITED STATES of America, Plaintiff-Appellee, v. Francisco LUCAS, Jr., Defendant-Appellant.

No. 22-50064

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 15, 2023 Pasadena, California

Filed June 14, 2023

Appeal from the United States District Court for the Central District of California, James V. Selna, District Judge, Presiding, D.C. No. 8:21-cr-00017-JVS-1

Sonam A. H. Henderson (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender's Office; Los Angeles, California; for Defendant-Appellant.

Bradley E. Marrett (argued), Assistant United States Attorney; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; Stephanie S. Christensen, Acting United States Attorney; Office of the United States Attorney; Santa Ana, California; for Plaintiff-Appellee.

Before: J. Clifford Wallace, Andrew D. Hurwitz, and Bridget S. Bade, Circuit Judges.

Opinion by Judge Wallace;

Dissent by Judge Hurwitz

OPINION

WALLACE, Circuit Judge:

Francisco Lucas, Jr., pleaded guilty to unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Lucas now appeals from the district court's sentencing order, which imposed a heightened base offense level under United States Sentencing Guidelines § 2K2.1(a)(4)(B). We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We review the district court's selection and interpretation of the Sentencing Guidelines de novo and the district court's factual findings for clear error. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). We reverse and remand.

I.

In December 2020, while on state probation, Lucas was searched by local police, who discovered photographs and videos on Lucas's cellphone depicting him with a firearm and magazine. A grand jury subsequently returned an indictment, charging Lucas with one count in violation of 18 U.S.C. § 922(g)(1) for illegal possession of a firearm as a convicted felon. Police never physically recovered the firearm or magazine. Lucas later pleaded guilty.

During sentencing, the parties disputed whether Lucas's base offense level should be increased under U.S.S.G. § 2K2.1(a)(4)(B), which applies if the offense involved a "semiautomatic firearm that is capable of accepting a large capacity magazine." The government filed an expert report from a federal agent who reviewed the photographs and video of Lucas's contraband. The agent stated that Lucas's firearm looked like a Glock model 22, .40 caliber pistol and that Lucas's magazine looked like an extended-length magazine capable of accepting more than 15 rounds of ammunition. The agent acknowledged the commercial availability of extended magazines that have been modified with "blockers" to accept fewer than 15 rounds.¹ Nonetheless, the agent observed that he had never personally encountered such a modified magazine in California. The agent concluded that without a physical inspection of the firearm and magazine, he could not conclusively determine whether Lucas's magazine was equipped with such a blocker or could have accepted more than 15 rounds at the time the photographs were taken.

The district court found that the government met its evidentiary burden to apply U.S.S.G. § 2K2.1(a)(4)(B). The district court held that even if Lucas had possessed a modified large capacity magazine, it was susceptible to easy conversion to remove the ammunition-limiting modification. Application of section 2K2.1(a)(4)(B) increased Lucas's advisory sentencing range from 33-41 months to 63-78 months. The district court ultimately sentenced Lucas to 57 months in prison.

II.

We requested oral argument to include whether Application Note 2 to U.S.S.G. § 2K2.1 unduly narrows U.S.S.G. § 2K2.1(a)(4)(B). Section 2K2.1(a)(4)(B) provides for a heightened base offense level if the criminal conduct involved a "semiautomatic firearm that is capable of accepting a large capacity magazine." Application Note 2 defines such a firearm as one:

that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.

U.S.S.G. § 2K2.1 app. n.2. No party argued in its briefs or before the district court that Application Note 2 is inconsistent with U.S.S.G. § 2K2.1(a)(4)(B) or that U.S.S.G. § 2K2.1(a)(4)(B) is unambiguous so as to defeat resort to Application Note 2. Rather, the parties assumed that Application Note 2 applies. Therefore, we hold that any argument otherwise has been waived on appeal. See Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1054 n.8 (9th Cir. 2010); cf. Lubow v. U.S. Dep't of State, 783 F.3d 877, 884 (D.C. Cir. 2015) (holding that the court must "adhere to the parties' framing" and that parties "forfeit an argument against deference by failing to raise it"). We express no opinion on whether Application Note 2 is inconsistent with the Guideline or whether U.S.S.G. § 2K2.1(a)(4)(B) is ambiguous, nor do we express any opinion on whether the district court should address these issues on remand. Because these issues were waived, for the purposes of this appeal we apply Application Note 2.

III.

Lucas contends that the district court committed error in finding, by clear and convincing evidence, that his magazine could accept more than 15 rounds of ammunition at the time of the offense. We start with the government's burden of proof to establish this fact. The government usually must prove a fact underlying a sentencing enhancement by a preponderance of the evidence. See United States v. Lonich, 23 F.4th 881, 910 (9th Cir. 2022). However, our circuit has held that where the use of a sentencing enhancement has an "extremely disproportionate impact on the sentence," due process may require that facts underlying such an enhancement be proven by clear and convincing evidence. United States v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001); see also Lonich, 23 F.4th at 910. This rule was crafted before the Supreme Court altered the sentencing landscape in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and this court stands alone in continuing to apply such a rule after Booker. See United States v. Pacheco, 489 F.3d 40, 45 (1st Cir. 2007); United States v. Jones, 531 F.3d 163, 176 (2d Cir. 2008) ; United States v. Fisher, 502 F.3d 293, 305 (3d Cir. 2007); United States v. Grubbs, 585 F.3d 793, 802 & n.5 (4th Cir. 2009) ; United States v. Brika, 487 F.3d 450, 461 (6th Cir. 2007); United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006); United States v. Villareal-Amarillas, 562 F.3d 892, 897-98 (8th Cir. 2009); United States v. Robertson, 946 F.3d 1168, 1171-72 (10th Cir. 2020); United States v. Siegelman, 786 F.3d 1322, 1332 & n.12 (11th Cir. 2015); cf. United States v. Simpson, 741 F.3d 539, 559 (5th Cir. 2014) ("Though we have continued to leave this door open, we have never actually required a heightened burden for factual determinations at sentencing.").

The government asks us to hold that our circuit case law is clearly irreconcilable with subsequent Supreme Court precedent and urges us to adopt the rule followed in our sister circuits. However, our court has continuously applied this rule post-Booker, see, e.g., Lonich, 23 F.4th at 910, and the government does not point to any intervening higher authority. As a three-judge panel, we are bound by our precedent. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (holding that a three-judge panel is bound by circuit precedent unless "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority").

The government concedes that if we do not hold our precedent as clearly irreconcilable with intervening Supreme Court authority, we should apply the clear-and-convincing-evidence standard here. Based on this concession, we assume without deciding that application of U.S.S.G. § 2K2.1(a)(4)(B) has an extremely disproportionate impact on Lucas's sentence and that the government must prove the underlying facts by clear and convincing evidence.

IV.

We emphasize that the following facts are undisputed: the firearm was physically capable of accepting a large capacity magazine, the magazine was in close proximity to Lucas's firearm, and the firearm itself was capable of firing many rounds without reloading. The only issue, therefore, is whether, at the time of the offense, Lucas's magazine "could accept more than 15 rounds of ammunition" under Application Note 2.

Based on the unique circumstances which are binding on us, we hold that the district court clearly erred in finding, by clear and convincing evidence, that Lucas's magazine could accept more than 15 rounds. To find a fact by clear and convincing evidence, a district judge must "have an abiding conviction that the truth of the factual contentions at issue is highly probable." Lonich, 23 F.4th at 916 (citation and internal quotation marks omitted). The government did not physically produce or inspect the firearm or the magazine. Without physical evidence, the government largely relied on its expert agent, who was, at most, equivocal. The agent acknowledged that without physical inspection, he could not conclusively state whether the magazine could in fact accept more than 15 rounds or whether it was instead modified to accept fewer. Nor did the agent explain the prevalence of any type of magazine in the community; he only relayed his personal experience with modified magazines. On this record, the district court's finding that the government established the capacity of Lucas's magazine by clear and convincing evidence was clear error. See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010) ("A finding is clearly erroneous...