United States v. Parlor

2 F.4th 807

UNITED STATES of America, Plaintiff-Appellee,

v.Lonnie Earl PARLOR, Defendant-Appellant.

No. 19-30269

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2020 Seattle, Washington

Filed June 21, 2021

Craig H. Durham (argued), Ferguson Durham PLLC, Boise, Idaho, for Defendant-Appellant.

Katherine L. Horwitz (argued), Assistant United States Attorney; Bart M. Davis, United States Attorney; United States Attorney's Office, Boise, Idaho; for Plaintiff-Appellee.

Before: Marsha S. Berzon, Eric D. Miller, and Daniel A. Bress, Circuit Judges.

Dissent by Judge Berzon

BRESS, Circuit Judge:

Lonnie Parlor pleaded guilty to one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court imposed three sentencing enhancements, resulting in a prison sentence of 120 months. This case requires us to consider the application of various interlocking provisions of the United States Sentencing Guidelines in the context of a § 922(g)(1) offense. We hold that the district court did not err in imposing the three enhancements.

I

On April 23, 2018, a confidential informant (CI) disclosed to law enforcement that Parlor, a convicted felon and parolee, was in possession of two firearms, a rifle and a shotgun. The next day, Parlor sold the rifle and the shotgun for $400 each to the CI and an undercover agent during a controlled buy.

Slightly more than eleven weeks passed. On July 11, 2018, Parlor was indicted on one count of unlawful possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). Parlor was arrested the next day. Shortly thereafter, agents searched Parlor's residence, where they found 21.63 grams of marijuana, $5,000 in cash, dozens of small plastic baggies, two digital scales, and a .22-caliber revolver. The revolver was discovered in a bed under a mattress, and the marijuana was in two bags in a backpack found at the foot of the same bed. The cash was found in a men's shirt in the closet. Baggies were located on top of a dresser in the bedroom. A search of Parlor's truck uncovered numerous additional baggies "that are commonly used for the distribution of narcotics."

A search of Parlor's storage unit, which also occurred on July 12, 2018, turned up a semiautomatic rifle, a 9mm handgun, and various ammunition. The 9mm handgun had been reported stolen during a February 2018 burglary.

Parlor entered a guilty plea without a plea agreement. The Probation Office's pre-sentence report (PSR) determined that under the United States Sentencing Guidelines (U.S.S.G.), Parlor's base offense level was 24 because he had two prior felony convictions of either a crime of violence or a controlled substance offense. The PSR recommended a three-level decrease for acceptance of responsibility. But it also recommended three sentence enhancements.

The first was a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) because the "offense involved" three to seven firearms, specifically five firearms (two sold, one in Parlor's home, and two in his storage unit). The second was a two-level enhancement under U.S.S.G § 2K2.1(b)(4)(A) because one of the firearms had been reported stolen. The third was a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing firearms "in connection with another felony offense, drug trafficking." The PSR noted that a firearm had been located along with the drugs, cash, baggies, and scales found in Parlor's residence. The PSR also recounted that the CI "disclosed that he/she had purchased narcotics from [Parlor] and [had] traded a firearm for narcotics with [Parlor] in the past."

The sentencing enhancements brought Parlor's offense level up to 29. Given Parlor's criminal history category of IV—which was based on a substantial record of past criminal activity, including numerous drug offenses—the PSR calculated a Guidelines range of 121 to 151 months, which was reduced to the statutory maximum of 120 months. Parlor filed written objections to the PSR, but the probation officer declined to make any changes. Absent the three enhancements, and with the three-level deduction for acceptance of responsibility, Parlor's Guidelines range would have been 57 to 71 months.

At Parlor's sentencing hearing, the district court adopted the PSR's findings and sentenced Parlor to 120 months in prison, the statutory maximum. Defense counsel at the hearing did not object to the multiple-firearms enhancement, and the district court did not discuss it further. The district court imposed the stolen-firearm enhancement based on "government records indicating that [a] firearm had been reported as stolen." And the court imposed the drug-trafficking enhancement based on evidence that a gun was found in a bed in Parlor's home, in close proximity to drugs and drug paraphernalia. The district court also noted that Parlor had "exchanged guns for drugs" in the past with the CI.

Parlor appeals, challenging the three sentencing enhancements. "We review a district court's construction and interpretation of the Guidelines de novo and its application of the Guidelines to the facts for abuse of discretion." United States v. Simon , 858 F.3d 1289, 1293 (9th Cir. 2017) (en banc) (quotations and alterations omitted). The district court's factual findings are reviewed for clear error. United States v. Tulaner , 512 F.3d 576, 578 (9th Cir. 2008).

II

To apply the three sentencing enhancements, the district court first had to connect the various firearms to each other and then connect Parlor's possession of an uncharged firearm with another felony offense, here drug trafficking. As we will explain, the district court correctly applied the Sentencing Guidelines.

A

We begin with the two-level enhancement for Parlor's possession of five firearms. See U.S.S.G. § 2K2.1(b)(1)(A). Parlor devotes limited argument to this issue, but it is the logical place to begin. Parlor essentially argues that the district court erred in imposing the multiple-firearms enhancement because the three firearms found during the searches of his house and storage unit were not sufficiently connected to his earlier possession of the two firearms for which he was charged. He points specifically to the eleven-week interval between the sale of two firearms during the controlled buy and the searches that yielded the three additional firearms. It is not apparent Parlor adequately objected on this ground before the district court. See, e.g. , United States v. Hayat , 710 F.3d 875, 895 (9th Cir. 2013) (setting forth the standard for plain error review). Regardless, Parlor's challenge fails under any standard of review.

U.S.S.G. § 2K2.1(b)(1)(A) provides that a two-level enhancement is warranted "[i]f the offense involved" three to seven firearms that were "unlawfully possessed." U.S.S.G. §§ 2K2.1(b)(1)(A), 2K2.1 cmt. n.5. Under the Guidelines, the "offense" means "the offense of conviction and all relevant conduct under § 1B1.3." Id. § 1B1.1 cmt. n.1(I). As applicable here, "relevant conduct" includes "all acts and omissions committed ... or willfully caused by the defendant" "that were part of the same course of conduct or common scheme or plan as the offense of conviction." Id. § 1B1.3(a)(1), (2); see also id. § 1B1.3(a)(2) (explaining that this framework applies to "offenses of a character for which § 3D1.2(d) would require grouping of multiple counts," which includes firearm possession offenses under § 2K2.1 ).

Commentary to U.S.S.G. § 1B1.3 provides guidance on the meaning of "same course of conduct or common scheme or plan," which are "closely related concepts." Id. § 1B1.3 cmt. n.5(B); see also United States v. Lambert , 498 F.3d 963, 966 (9th Cir. 2007) ("The Guidelines, including enhancements, are ordinarily applied in light of available commentary, including application notes.") (quotations omitted). Offenses are part of a "common scheme or plan" if they are "substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi ." U.S.S.G. § 1B1.3 cmt. n.5(B)(i). Offenses are "part of the same course of conduct" if "sufficiently connected or related to each other" such that they are "part of a single episode, spree, or ongoing series of offenses." Id. § 1B1.3 cmt. n.5(B)(ii). "Factors that are appropriate to the determination of whether offenses are sufficiently connected or related to each other to be considered as part of the same course of conduct include the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses." Id.

Firearm offenses may be grouped under the "relevant conduct" principles in § 1B1.3(a)(2). See U.S.S.G. § 3D1.2(d). Thus, "[w]hen a court determines the number of firearms involved in an offense under U.S.S.G. § 2K2.1(b)(1), it looks to the relevant conduct section of the guidelines ( U.S.S.G. § 1B1.3(a)(2) ) to determine how many firearms come within the same course of conduct or perhaps a common scheme or plan." United States v. Santoro , 159 F.3d 318, 321 (7th Cir. 1998). Such grouping is generally appropriate in cases like this one, "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).

Here, Parlor, a prohibited person, possessed two firearms as of April 2018 and three more as of July 2018. These repeated, substantially identical offenses are sufficiently related to be considered part of the same course of conduct (a series of unlawful firearm possessions) or common scheme or plan (to possess firearms unlawfully). See id. ; U.S.S.G. § 1B1.3 cmt. n.5(B)(i)–(ii). There is no dispute—and Parlor's guilty plea confirms—that Parlor was not allowed to possess firearms because he was a convicted felon. That conclusion applies equally to the...