FILED
NOT FOR PUBLICATION JUN 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30196
Plaintiff - Appellee, D.C. No. 6:12-cr-00428-AA-1
v.
MEMORANDUM*
WILLARD BRYAN WILHELM,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted June 5, 2014**
Seattle, Washington
Before: GOODWIN, McKEOWN, and WATFORD, Circuit Judges.
Willard Bryan Wilhelm appeals his 30-month prison sentence for unlawful
possession of a firearm in violation of 18 U.S.C. § 922(g)(9). 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.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court did not err by declining to apply a sentencing reduction
under U.S. Sentencing Guidelines Manual § 2K2.1(b)(2). That section provides
for a reduction of a defendant’s offense level to six “[i]f the defendant . . .
possessed all ammunition and firearms solely for lawful sporting purposes or
collection, and did not unlawfully discharge or otherwise unlawfully use such
firearms or ammunition.” U.S. Sentencing Guidelines Manual § 2K2.1(b)(2)
(2012). To determine whether § 2K2.1(b)(2) applies, sentencing courts consider
the “[r]elevant surrounding circumstances,” which “include the number and type of
firearms, the amount and type of ammunition, the location and circumstances of
possession and actual use, the nature of the defendant’s criminal history . . . , and
the extent to which possession was restricted by local law.” U.S. Sentencing
Guidelines Manual § 2K2.1(b)(2) cmt. n.6 (2012).
Consistent with § 2K2.1(b)(2) and its accompanying commentary, the
district court considered “all the[] circumstances” and correctly determined that
Wilhelm did not show that he possessed his rifle solely for lawful sporting
purposes or collection because, on the date of his underlying offense, he held “the
rifle with the stated intent of harming another person.” Contrary to Wilhelm’s
contention, the district court’s sentencing determination was not “based on clearly
erroneous facts,” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
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banc), and Wilhelm failed to establish that he was entitled to a sentencing
reduction under § 2K2.1(b)(2) by a preponderance of the evidence. See United
States v. Gavilan, 966 F.2d 530, 531–32 (9th Cir. 1992) (citing United States v.
Uzelac, 921 F.2d 204, 205 (9th Cir. 1990)).
AFFIRMED.
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