United States v. Kurtis Wortley

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                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         DEC 8 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30273

                Plaintiff-Appellee,             D.C. No.
                                                1:16-cr-00048-SPW-1
 v.

KURTIS LEE WORTLEY,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                           Submitted December 5, 2017**
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

      Kurtis Lee Wortley (“Wortley”) challenges the 48-month sentence imposed

following his guilty plea to being a 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 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).
       Wortley argues error in the application of a four-level enhancement under

U.S.S.G. § 2K2.1(b)(6)(B) based on his use of a firearm in connection with another

felony offense. Because this issue involves a straightforward application of the

Guidelines and accompanying commentary to the facts, we review the district

court’s application of the enhancement for abuse of discretion. See United States v.

Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

       Here, Wortley pled guilty to being a felon in possession of a rifle during a

several-week period in January 2016. Wortley admitted placing firearms in his

vehicle in early January. Approximately one week later, Wortley fired a pistol

through the window of a home where an individual was sleeping. Several days later,

law enforcement discovered the rifle in Wortley’s vehicle.

       Wortley’s pistol firing, which he concedes constituted the separate felony

offenses of criminal endangerment and criminal mischief, constituted the use of a

firearm in another felony offense. See United States v. Polanco, 93 F.3d 555, 565

(9th Cir. 1996). Therefore, application of the enhancement under U.S.S.G. §

2K2.1(b)(6)(B) was proper if his use of the pistol was part of the “same course of

conduct, common scheme, or plan” as his possession of the rifle.            Id. app.

n. 14(E)(ii).

       There was no abuse of discretion in determining that the offenses were part of

the “same course of conduct, common scheme, or plan,” given their timing and


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nature. See U.S.S.G. § 1B1.3 cmt. n.5(B) (appropriate factors include: the nature

of the offenses, “the degree of similarity of the offenses, the regularity (repetitions)

of the offenses, and the time interval between the offenses”).

      AFFIRMED.




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