FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 3, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-3189
STORM MICHAEL BELLAMY,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:17-CR-20020-CM-1)
_________________________________
Michael L. Belancio of Foland, Wickens, Roper, Hofer & Crawford, P.C., Kansas City,
Missouri, for the Defendant – Appellant.
Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States
Attorney and Carrie N. Capwell, Assistant United States Attorney, District of Kansas, on
the brief), Kansas City, Kansas, for the Plaintiff – Appellee.
_________________________________
Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
In fall 2016, agents with the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) began investigating Storm Michael Bellamy, a convicted felon,
for suspected methamphetamine distribution. On the morning of October 5, 2016,
Mr. Bellamy’s housemate ordered him to vacate the home. Twelve hours later, ATF
agents executed a warrant to search the premises. In Mr. Bellamy’s former bedroom,
they discovered his personal effects, a rifle with a loaded large-capacity magazine
attached, and a second large-capacity magazine nearby.
Mr. Bellamy pled guilty to being a felon in possession of a firearm. The
district court found that he possessed the rifle and the large-capacity magazines. It
applied United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
§ 2K2.1(a)(4)(B), which establishes a base offense level of 20 when a convicted felon
possesses a semiautomatic firearm with a large-capacity magazine that is either
attached or in close proximity to the firearm. U.S.S.G. § 2K2.1(a)(4)(B); see id.
cmt. n.2. The court sentenced Mr. Bellamy to 40 months in prison.
Mr. Bellamy challenges the procedural reasonableness of his sentence.
Because he was ejected from the house, he argues he did not possess the rifle when
agents seized it on the evening of October 5. He also claims there was insufficient
evidence to show that the rifle he possessed earlier that morning had a large-capacity
magazine attached or in close proximity to it. Mr. Bellamy thus argues the district
court erred in assigning him a base offense level of 20 under § 2K2.1(a)(4)(B).
The record contains ample support for the district court’s finding that Mr.
Bellamy possessed the rifle and the large-capacity magazines. Accordingly, the court
did not abuse its discretion in sentencing him. Exercising jurisdiction under 28
U.S.C § 1291 and 18 U.S.C. § 3742(a), we affirm.
2
I. BACKGROUND
A. U.S.S.G. § 2K2.1(a)(4)(B)
U.S.S.G. § 2K2.1(a) lists base offense levels for offenses involving the
unlawful receipt, possession, or transportation of firearms or ammunition. The
minimum base offense level for a felon in possession of a firearm is 14. U.S.S.G.
§ 2K2.1(a)(1)(6). But under § 2K2.1(a)(4)(B), the base offense level is 20 if:
the (i) offense involved a . . . semiautomatic firearm that is
capable of accepting a large capacity magazine; . . . and
(ii) defendant . . . was a prohibited person at the time the
defendant committed the instant offense . . . .
The commentary to this Guidelines provision specifies that a “‘prohibited
person’ means any person described in 18 U.S.C. § 922(g),” which includes all
convicted felons. U.S.S.G. § 2K2.1 cmt. n.3.1 The commentary also explains:
[A] “semiautomatic firearm that is capable of accepting a
large capacity magazine” means a semiautomatic firearm
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.
Id. cmt. n.2.
1
The parties do not dispute Mr. Bellamy’s status as a “prohibited person.”
3
B. Factual History2
Mr. Bellamy had been convicted of several felonies before the events leading
to this case. In September 2016, he moved into a home occupied by Robert Spalding,
Jr. Soon after, the ATF began investigating Mr. Bellamy for suspected distribution
of methamphetamine. As part of this investigation, ATF agents searched trash bins at
the house and discovered drug paraphernalia, mail with Mr. Bellamy’s name on it,
and an empty box of Wolf .223 ammunition, which can be used in a 5.56-caliber
rifle.3
On the morning of October 5, 2016, Mr. Spalding “physically ejected” Mr.
Bellamy from the house.4 ROA, Vol. 2 at 49-50. Approximately 12 hours later, ATF
2
The following facts are drawn from Mr. Bellamy’s PSR and the transcripts of
his sentencing and change of plea hearings. The parties do not dispute these facts.
See Aplt. Br. at 7 (noting that “[t]here is very little factually in dispute in this case”
and that “Mr. Bellamy and the Government stipulated the sentencing facts were true
without the need to present evidence”); ROA, Vol. 2 at 35 (prosecutor’s statement
that the Government “pretty much stipulated to most of the facts that . . . [are]
contained in the PSR”).
3
This firearm is sometimes described as a 5.56-mm rifle. Because the record
materials refer to the firearms in this case using the caliber designation, we use that
terminology also.
4
The record shows that Mr. Bellamy sold methamphetamine from the house
and that Mr. Spalding instructed him to stop. At sentencing, the Government claimed
that “Mr. Spalding was tired of – of Mr. Bellamy living there” and “didn’t want him
there anymore.” ROA, Vol. 2 at 54. But beyond this, the record does not explain the
reason for the ejection.
4
agents executed a search warrant at the residence.5 Mr. Bellamy was not present
during the search. When the agents arrived at the house, they discovered Mr.
Spalding hiding in the attic. Mr. Spalding informed them he had ejected Mr.
Bellamy, who previously occupied two bedrooms on the first floor. He stated Mr.
Bellamy had given him a Sig Sauer .380 handgun but had later taken it back. He said
Mr. Bellamy used methamphetamine regularly and stored methamphetamine and a
rifle in his closet. Mr. Spalding also said Mr. Bellamy had installed a video
surveillance system to record video throughout the house.
In Mr. Bellamy’s room, the agents found his birth certificate and an unloaded
large-capacity magazine, which was stored in a dresser drawer. They also discovered
a Delaware Machinery 5.56-caliber rifle in Mr. Bellamy’s closet. The rifle had one
round of ammunition in the chamber and an additional 19 rounds in an attached
large-capacity magazine.
Elsewhere in the house, the agents found plastic baggies, drug paraphernalia,
more than 100 rounds of assorted ammunition, the Sig Sauer handgun, and a firearms
case. They also recovered a Night Owl DVR surveillance system. Video from this
system showed Mr. Bellamy carrying a rifle on September 21, 2016, but did not show
whether a high-capacity magazine was attached.6 The recording also depicted several
5
This timing appears coincidental. The record provides no indication the ATF
agents knew Mr. Bellamy had been ejected or planned their search to coincide with
his absence.
6
At the sentencing hearing, the Government conceded that the video was
“very grainy” and that “you can’t tell if there’s a large capacity magazine attached to
[the rifle].” ROA, Vol. 2 at 44.
5
visitors entering and exiting the house between Mr. Bellamy’s ejection and the ATF
search. At least one visitor appeared to carry something into the house.
DNA and fingerprint tests performed after the search revealed no evidence
linking Mr. Bellamy to the magazines or ammunition.
C. Procedural History
A grand jury charged Mr. Bellamy with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).
Mr. Bellamy pled guilty to the charge in the indictment without a plea
agreement. At his change of plea hearing, he emphasized that he was “admitting to
the conduct in the indictment”—namely, “that he possessed [two] firearms, that they
were . . . inter-mingled with his possessions.” But he did not admit to possession of
any large-capacity magazines. ROA, Vol. 2 at 21-22.
After Mr. Bellamy’s guilty plea, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”). It stated that Mr. Bellamy possessed a
semiautomatic firearm capable of accepting a large-capacity magazine because the
rifle recovered from Mr. Bellamy’s closet had an attached magazine that held more
than 15 rounds of ammunition. The PSR applied U.S.S.G. § 2K2.1(a)(4)(B), which
sets a base offense level of 20 when a felon in possession offense involves a large-
capacity semiautomatic firearm. It then subtracted three levels for acceptance of
responsibility, leaving Mr. Bellamy’s total offense level at 17. The PSR assigned a
6
criminal history category of IV and calculated a Guidelines sentence range of 37 to
46 months.7
Mr. Bellamy objected to the PSR in a sentencing memorandum, arguing there
was insufficient evidence to apply § 2K2.1(a)(4)(B). Although he did “not contest
that one of the firearms at issue was loaded with a high capacity magazine at the time
of seizure,” he claimed the Government had “no evidence that the magazine was
attached or in close proximity . . . at the last time that Mr. Bellamy could have
possibly had dominion and control over the premises, or the weapon.” ROA, Vol. 1
at 24. He also alleged that “at least two people, who had grudges against [him] were
. . . in the premises during the twelve hour period . . . before law enforcement
conducted the search,” and he suggested that these individuals might have “move[d]
objects within the demised premises.” Id. at 27 (footnote omitted). He thus asserted
the Government could not show by a preponderance of the evidence that “there were
large capacity magazines either loaded into or within close proximity to one of the
firearms” when he possessed the rifle. Id. at 26.
At sentencing, the district court concluded “it’s more likely . . . that this
firearm and the magazine were attached at the time that [Mr. Bellamy was at the
house], and at the time [he] left, that was the condition of the firearm and the
magazine.” ROA, Vol. 2 at 61-62. It found the Government had met its burden of
7
If the PSR had not applied § 2K2.1(a)(4)(B), Mr. Bellamy’s total offense
level would have been 12 (a base offense level of 14 under § 2K2.1(a)(1)(6), less two
levels for acceptance of responsibility), and his Guidelines range would have been 21
to 27 months.
7
showing that Mr. Bellamy had possessed a firearm with a large-capacity magazine
attached or in close proximity. The court overruled Mr. Bellamy’s objections and
found that “the base offense level was accurately calculated in the presentence
investigation report.” Id. at 62. It then adopted the PSR’s calculations and sentenced
Mr. Bellamy to 40 months in prison followed by two years of supervised release. Mr.
Bellamy timely appealed.
II. DISCUSSION
The record supports the district court’s finding that Mr. Bellamy possessed a
rifle with a large-capacity magazine attached or in close proximity. The court
therefore did not abuse its discretion when it applied U.S.S.G. § 2K2.1(a)(4)(B).
A. Standard of Review and Legal Background
We review criminal sentences for reasonableness, applying an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007); United States v.
Bergman, 599 F.3d 1142, 1150 (10th Cir. 2010). This review “includes both a
procedural component, encompassing the method by which a sentence was
calculated, as well as a substantive component, which relates to the length of the
resulting sentence.” United States v. Ortiz-Lazaro, 884 F.3d 1259, 1261 (10th Cir.
2018) (quotations omitted); see also United States v. Sanchez-Leon, 764 F.3d 1248,
1261-62 (10th Cir. 2014).
A challenge to the application of § 2K2.1(a)(4)(B) contests the sentence’s
procedural reasonableness. See United States v. Arevalo-Magana, 686 F. App’x 559,
8
561-62 (10th Cir. 2017) (unpublished).8 “We review de novo any legal questions in a
district court’s application of the Guidelines, and we review any factual findings for
clear error.” United States v. Serrato, 742 F.3d 461, 468 (10th Cir. 2014) (quotations
omitted); see also United States v. Madkins, 866 F.3d 1136, 1144 (10th Cir. 2017)
(“We review challenges to the imposition of guidelines enhancements for clear error
as to findings of fact and de novo as to questions of law.”). “We defer to the district
court’s application of the Guidelines to the facts.” United States v. Martinez, 512
F.3d 1268, 1275 (10th Cir. 2008).
Mr. Bellamy does not challenge the district court’s legal interpretation of
§ 2K2.1(a)(4)(B). Rather, he challenges the court’s factual finding that he possessed
a firearm with a large-capacity magazine attached or in close proximity to it. Where
“the district court’s factual finding is itself legally sufficient to support a[n] . . .
enhancement . . . , we may reverse only if the finding is itself clearly erroneous.”
United States v. Shippley, 690 F.3d 1192, 1199 (10th Cir. 2012). Accordingly, we
review Mr. Bellamy’s attack on the district court’s factual finding for clear error. See
Arevalo-Magana, 686 F. App’x at 562-63 (using clear error standard to assess a
district court’s application of § 2K2.1(a)(4)(b)); United States v. Gevedon, 214 F.3d
807, 812 (7th Cir. 2000) (reviewing district court’s finding that defendant possessed
8
Although not precedential, we find the reasoning of this unpublished opinion
instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
9
high-capacity weapons and qualified as a “prohibited person” under §
2K2.1(a)(4)(B)(i) for clear error).
“A finding is clearly erroneous only if it is without factual support in the
record or if, after reviewing all the evidence, we are left with a definite and firm
conviction that a mistake has been made.” Shippley, 690 F.3d at 1199 (brackets and
quotations omitted). “[I]f the district court’s account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would have weighed
the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74
(1985). “Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Id. at 574.
“The facts necessary to calculate the guidelines sentencing range must be
proved by a preponderance of the evidence.” United States v. Flonnory, 630 F.3d
1280, 1285-86 (10th Cir. 2011); U.S.S.G. § 6A1.3, cmt. (“[The] use of a
preponderance of the evidence standard is appropriate . . . in resolving disputes
regarding application of the guidelines to the facts of a case.”). The Government
bears this burden. United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir. 1990). It
must show that “the existence of a fact is more probable than its nonexistence.”
Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508
U.S. 602, 622 (1993).
10
B. Analysis
The district court’s finding that Mr. Bellamy possessed a semiautomatic
firearm capable of accepting a large-capacity magazine was not clearly erroneous.
Evidence Supports Application of § 2K2.1(a)(4)(B)
Mr. Bellamy concedes he possessed the rifle on the morning of October 5,
2016. He also concedes that when the weapon was seized 12 hours later, it had a
large-capacity magazine attached and another one nearby. Accordingly, the only
question is whether it was clearly erroneous for the district court to find by a
preponderance of the evidence that a large-capacity magazine was attached or in
close proximity to the rifle on the morning of October 5. U.S.S.G. § 2K2.1(a)(4)(B);
see Flonnory, 630 F.3d at 1285-86. We conclude it was not.
During the search, the ATF agents discovered the rifle and its attached
magazine stowed in Mr. Bellamy’s closet—a private and concealed part of the
bedroom. The rifle’s location supports an inference that Mr. Bellamy possessed both
the firearm and its attached magazine before Mr. Spalding ordered him to leave the
home.
The ATF agents also discovered a second large-capacity magazine stored in
Mr. Bellamy’s dresser drawer. Elsewhere in the room, they found his belongings,
including his birth certificate and credit cards. Storage of the second large-capacity
magazine in a discreet location alongside Mr. Bellamy’s personal effects further
suggests that the large-capacity magazines belonged to him and that he kept them
attached or in close proximity to the rifle.
11
In addition, several days before the October 5 search, ATF agents searched the
trash outside the house. They discovered paperwork bearing Mr. Bellamy’s name.
They also found an empty box of Wolf .223 ammunition, which could be used in the
large-capacity magazines later found in Mr. Bellamy’s bedroom. This evidence
corroborates that Mr. Bellamy possessed both the rifle and the large-capacity
magazines before the October 5 search.
It was thus “plausible” for the district court to conclude that the Government
carried its burden. Anderson, 470 U.S. at 574. The court did not clearly err in
finding that Mr. Bellamy possessed the rifle with a large-capacity magazine attached
or in close proximity, and it therefore did not abuse its discretion in assigning a base
offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(B).
Mr. Bellamy’s Alternative Explanations Do Not Establish Clear Error
Mr. Bellamy’s alternative explanations for the presence of the large-capacity
magazines in his bedroom are unconvincing. He notes that after Mr. Spalding told
him to leave the house, other individuals entered and exited the premises and
therefore had access to his room. He also claims Mr. Spalding and a woman who
entered the house held grudges against him, implying they might have planted the
magazines in his room to get him in trouble.9
9
According to Mr. Bellamy, this woman “was on the premises for at least 15
minutes looking to retrieve $500 from Mr. Bellamy that she claim[ed] he owed her in
relationship to a car deal that had gone awry.” ROA, Vol. 1 at 27.
12
These theories are implausible. The possibility that someone attached a
magazine to Mr. Bellamy’s rifle and placed another magazine in his dresser drawer
after he was ejected from the house is far less likely than Mr. Bellamy himself
placing the magazines on the rifle and in his drawer. In addition, the record lacks
any evidence that Mr. Spalding or any individuals who visited the house had
forewarning that the search was going to occur.10
As discussed above, a district court’s “finding is clearly erroneous only if it is
without factual support in the record or if, after reviewing all the evidence, we are
left with a definite and firm conviction that a mistake has been made.” Shippley, 690
at 1199. And “[w]here there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S.
at 574. Here, the evidence supported the Government’s position and the court’s
finding. There is no “definite” or “firm” reason to believe the district court erred.
Shippley, 690 at 1199.
* * * *
The Government needed only to prove by a preponderance of the evidence that
the large-capacity magazines were attached or in close proximity to the rifle at the
time Mr. Bellamy admits he possessed it. And on clear error review, we may not
reverse “[i]f the district court’s account of the evidence is plausible in light of the
record viewed in its entirety.” Anderson, 470 U.S. at 573-74. Here, the facts—a rifle
10
In fact, the ATF agents found Mr. Spalding hiding in his attic, which
suggests he was startled by and unprepared for the search.
13
and an attached large-capacity magazine stowed in the bedroom closet, a second
large-capacity magazine cached in the bedroom dresser, and large-capacity
ammunition packaging discovered days before the search—support a plausible
inference that when Mr. Bellamy possessed the rifle on the morning of October 5,
2016, the large-capacity magazines were attached or in close proximity. The court
did not abuse its discretion by assigning Mr. Bellamy a base offense level of 20 under
§ 2K2.1(a)(4)(B).
III. CONCLUSION
We affirm the district court’s judgment.
14