NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30145
Plaintiff-Appellee, D.C. No.
1:15-cr-00019-EJL-1
v.
SHAUN MCNABB, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted October 2, 2017**
Portland, Oregon
Before: PAEZ and BEA, Circuit Judges, and LAMBERTH, *** District Judge.
Shaun McNabb appeals his convictions for possession of a controlled
substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D),
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
and possession of a firearm by a prohibited person in violation of 18 U.S.C. §
922(g)(1). McNabb also appeals the district court’s imposition of a 60-month
prison sentence. We have jurisdiction under 18 U.S.C. § 1291. We affirm.
We review de novo a denial of a motion to suppress. United States v.
Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). However, “the
underlying factual findings are reviewed for clear error.” Id. We review for abuse
of discretion a district court’s application of the Sentencing Guidelines to the facts
of a particular case. United States v. Johansson, 249 F.3d 848, 858 (9th Cir. 2001).
McNabb first contends that the district court erred in denying his motion to
suppress by crediting the officers’ testimony over his own, particularly as it related
to whether he had committed traffic violations and whether the officers had
searched his car prior to the arrival of the drug dog. The district court did not
clearly err in finding the officers’ testimony more credible than McNabb’s at the
hearing on the motion to suppress. The district court had the opportunity to
observe each witness, and resolving “conflicting testimony is properly a matter for
the district court.” United States v. Celestine, 324 F.3d 1095, 1101 (9th Cir. 2003).
The record supports the district court’s finding and does not contain evidence
sufficient to leave this court with the “definite and firm conviction that a mistake
has been committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). Therefore,
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the district court did not err in denying the defendant’s motion to suppress.
Next, McNabb argues that the district court abused its discretion in applying
a four-level sentence enhancement for possessing a firearm in connection with
another felony offense. U.S.S.G. § 2K2.1(b)(6)(B). The commentary on the
Guidelines, however, specifically highlights an application of the enhancement in a
drug trafficking case when the “firearm is found in close proximity to drugs”
because in such cases “the presence of the firearm has the potential of facilitating
another felony offense or another offense, respectively.” U.S.S.G. § 2K2.1 cmt.
n.14(B). Here, where McNabb’s firearm was found in the same backpack as the
drugs, the district court did not abuse its discretion by applying the enhancement.
McNabb’s argument that the enhancement should not apply because the jury
acquitted him on the second count of the indictment—possession of a firearm in
furtherance of a drug trafficking crime—is without merit. The burden of proof at
sentencing is a preponderance of the evidence, not beyond a reasonable doubt, and
a judge may consider at sentencing conduct of which a defendant was acquitted.
United States v. Watts, 519 U.S. 148, 154-55 (1997). The district court, therefore,
did not abuse its discretion in finding by a preponderance of the evidence that the
gun emboldened McNabb’s unlawful drug sales. United States v. Chadwell, 798
F.3d 910, 917 (9th Cir. 2015).
AFFIRMED.
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