FILED
NOT FOR PUBLICATION OCT 22 2010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. 09-30439
Plaintiff - Appellee, D.C. No. 6:93-cr-60068-HO-1
v.
MEMORANDUM *
RANDY ALLEN DENHEM,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-30440
Plaintiff - Appellee, D.C. No. 6:09-cr-60032-HO-1
v.
RANDY ALLEN DENHEM,
Defendant - Appellant.
Appeals from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted October 4, 2010
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
In these consolidated appeals, Randy Denhem appeals his sentence of 39
months’ imprisonment for his convictions of Felon in Possession of a Firearm, 18
U.S.C. § 922(g)(1), and Possession of a Stolen Firearm, 18 U.S.C. § 922(j); and his
sentence of 21 months’ imprisonment for violating the conditions of his supervised
release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. First, Denhem argues in 09-30440 that the district court improperly
enhanced his sentence under U.S.S.G. § 2K2.1(b)(6) on the basis of an erroneous
finding that Denhem had participated in a burglary where he stole a handgun.
Denhem contends that the evidence presented by the government, consisting
principally of the testimony of Denhem’s ex-girlfriend and alleged accomplice,
Shannon Howell, was insufficient to prove that Denhem had committed the
offense. We conclude that the evidence was sufficient and hold that the
§ 2K2.1(b)(6) enhancement was proper.
Although Howell had testified inconsistently before a grand jury, the district
court did not clearly err when it credited her testimony that Denhem had broken
into a house with her. The circumstances here contrast sharply with United States
v. Huckins, 53 F.3d 276 (9th Cir. 1995), relied on by Denhem, where there was no
substantial evidence to corroborate an accomplice’s testimony that the defendant
2
had used a gun while committing a bank robbery. Here, Howell’s testimony was
corroborated by Denhem’s admission that he possessed one of the stolen guns a
few weeks after the burglary. Her testimony was also supported by the burglary
victim’s opinion that, in light of Howell’s diminutive size, she could not have
broken down the door to his home by herself. In light of all the evidence presented
at the sentencing hearing, the district court did not clearly err in finding that
Denhem committed the burglary. With that finding, the district court properly
applied the § 2K2.1(b)(6) enhancement.
2. Next, Denhem argues in both 09-30439 and 09-30440 that the district court
committed procedural and substantive error when it failed to consider as mitigation
the fact that Denhem’s 1994 sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), which was based on several prior second degree
burglary convictions under Or. Rev. Stat. § 164.215, would not have been proper
under the present interpretation of the ACCA. Denhem argues that recent United
States Supreme Court and Ninth Circuit opinions in Begay v. United States, 553
U.S. 137 (2008), and United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en
banc), exclude Oregon Second Degree Burglary from the category of ACCA
violent felonies and therefore his 1994 sentence was unjust.
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We need not address the question of whether Oregon Second Degree
Burglary is a violent felony under the ACCA.1 In sentencing Denhem in 1994, the
court followed then-existing Ninth Circuit precedent; there was nothing improper
about that sentence. Accordingly, the district court did not commit procedural
error in failing to consider as mitigation the later change in the law.
Moreover, in light of all the circumstances, the district court’s sentences
toward the low end of Denhem’s advisory guidelines range in both cases were
substantively reasonable. In particular, in 09-30439, the court’s sentence of 21
months’ imprisonment was reasonable where Denhem violated the conditions of
his supervised release by absconding supervision and committing new criminal
offenses. See United States v. Carty, 520 F.3d 984, 996 (9th Cir. 2008) (en banc)
(affirming a within guidelines sentence where there was nothing unusual about the
defendant’s circumstances that compelled a sentence below the advisory guidelines
range). Similarly, in 09-30440, the court’s sentence of 39 months’ imprisonment
was reasonable where Denhem committed a felony gun offense after failing to
report for his prison sentence in an unrelated drug case. See id.
1
We also need not address the district court’s denial of Denhem’s Fed. Rule
Civ. Pro. 60(b) motion. At oral argument, counsel represented that Denhem’s
appeal did not challenge the merits of the district court’s Rule 60(b) ruling.
4
Denhem’s sentence in 09-30439 is AFFIRMED, and his sentence in 09-
30440 is also AFFIRMED.
5