FILED
NOT FOR PUBLICATION OCT 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30419
Plaintiff - Appellee, D.C. No. 3:08-cr-00506-HA-1
v.
MEMORANDUM *
KARUNA MANOTHAM,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted October 4, 2010
Portland, Oregon
Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
Karuna Manotham appeals his 37-month sentence imposed after his
conviction for Felon in Possession of a Firearm in violation of 18 U.S.C.
§ 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Manotham argues that the district court erred when it applied a four-level
sentencing enhancement under U.S.S.G. § 2K2.1(b)(6) for the use of a firearm in
connection with another felony. Although Oregon dismissed the state charges
against Manotham, the district court properly found that his conduct constituted the
Oregon felony offense of unlawful use of a weapon, in violation of Or. Rev. Stat. §
166.220, when he pointed a gun at another person during a road rage incident.
Manotham contends, however, that unlawful use of a weapon is not “another
felony offense” under § 2K2.1(b)(6) because it is a firearms possession offense that
is expressly exempted by § 2K2.1, Application Note 14(C).
Focusing on the second part of the three-part test adopted by this court in
United States v. Valenzuela, 495 F.3d 1127, 1134 (9th Cir. 2007), Manotham
argues that unlawful use of a weapon is categorically a firearms possession offense
because it contains as an element the possession of a firearm. We disagree.
Although possession of a weapon is implicit where a person uses a weapon
unlawfully, possession of a weapon is not an element of the offense. See Oregon
Criminal Jury Instruction No. 2403 (stating that elements of unlawful use of a
weapon are [1] that the act occurred in the proper jurisdiction, [2] that the act
occurred on or about a particular date, and [3] that the defendant intentionally
attempted to use unlawfully against the victim any dangerous or deadly weapon).
2
Unlawful use of a weapon under Oregon law criminalizes unlawful use of a
weapon, not mere possession. Accordingly, unlawful use of a weapon is not a
firearms possession offense under the second prong of the Valenzuela test, and the
district court’s application of the § 2K2.1(b)(6) four-level enhancement was
proper.
AFFIRMED.
3