United States v. Lonnie Parlor ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30269
Plaintiff-Appellee,
D.C. No.
v. 1:18-cr-00203-BLW-1
LONNIE EARL PARLOR,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted December 9, 2020
Seattle, Washington
Filed June 21, 2021
Before: Marsha S. Berzon, Eric D. Miller, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress;
Dissent by Judge Berzon
2 UNITED STATES V. PARLOR
SUMMARY *
Criminal Law
Affirming a sentence for unlawful possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1), the
panel held that the district court properly imposed three
sentencing enhancements: a two-level enhancement under
U.S.S.G. § 2K2.1(b)(1)(A) because the “offense involved”
three to seven firearms that were “unlawfully possessed;” a
two-level enhancement under § 2K2.1(b)(4)(A) because one
of the firearms had been reported stolen; and a four-level
enhancement under § 2K2.1(b)(6)(B) for possessing
firearms “in connection with another felony offense, drug
trafficking.”
The panel held that the district court properly imposed
the multiple-firearms enhancement under § 2K2.1(b)(1)(A)
because three firearms found during the search of
defendant’s house and storage unit were sufficiently
connected to his earlier possession of the two firearms for
which he was charged. The panel concluded that
defendant’s possession of the three firearms was “relevant
conduct” under U.S.S.G. § 1B1.3 because it was part of the
same course of conduct or common scheme or plan to
possess firearms unlawfully, despite an eleven-week interval
between the sale of the two charged firearms and the
searches that yielded the three additional firearms.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PARLOR 3
The panel held that the enhancement under
§ 2K2.1(b)(4)(A) was justified because there was sufficient
evidence showing that the handgun found in defendant’s
storage unit was stolen when it was listed as stolen in the
FBI’s National Crime Information Center database.
The panel held that the district court properly imposed
an enhancement under U.S.S.G. § 2K2.1(b)(6)(B) on the
basis that defendant possessed a revolver (uncharged) that
was found near drugs and other drug paraphernalia in his
house, and a confidential informant made a statement about
previously purchasing drugs from defendant in exchange for
a gun. The panel concluded that the district court
permissibly determined that defendant’s unlawful
possession of the revolver was conduct relevant to the
charged firearm offense. The district court also permissibly
determined that defendant possessed the revolver in
connection with the felony offense of drug trafficking
because the revolver was found in close proximity to both
the drugs and the drug paraphernalia. The panel held that
the district court did not abuse its discretion in treating the
confidential informant’s statement as corroborative.
The panel further held that the district court did not
plainly err in failing to apply a heightened “clear and
convincing” standard of proof because the aggregated
enhancements more than doubled his Sentencing Guidelines
range.
Dissenting, Judge Berzon wrote that Commentary
accompanying the Sentencing Guidelines strongly suggests
that illegal possession of additional firearms, standing alone,
is not enough to satisfy the requirements for relevant
conduct. Further, even if possession of all of defendant’s
firearms was relevant conduct, the district court abused its
4 UNITED STATES V. PARLOR
discretion by finding that defendant was engaged in drug
trafficking by relying on hearsay without establishing its
reliability. Judge Berzon wrote that a single statement by a
probation officer in defendant’s presentence report that a
confidential informant had disclosed to federal agents that
he/she had purchased narcotics from defendant and traded a
firearm for narcotics with him in the past was an insufficient
evidentiary basis for determining that defendant was
engaged in drug trafficking.
COUNSEL
Craig H. Durham (argued), Ferguson Durham PLLC, Boise,
Idaho, for Defendant-Appellant.
Katherine L. Horwitz (argued), Assistant United States
Attorney; Bart M. Davis, United States Attorney; United
States Attorney’s Office, Boise, Idaho; for Plaintiff-
Appellee.
OPINION
BRESS, Circuit Judge:
Lonnie Parlor pleaded guilty to one count of unlawful
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). The district court imposed three
sentencing enhancements, resulting in a prison sentence of
120 months. This case requires us to consider the
application of various interlocking provisions of the United
States Sentencing Guidelines in the context of a § 922(g)(1)
offense. We hold that the district court did not err in
imposing the three enhancements.
UNITED STATES V. PARLOR 5
I
On April 23, 2018, a confidential informant (CI)
disclosed to law enforcement that Parlor, a convicted felon
and parolee, was in possession of two firearms, a rifle and a
shotgun. The next day, Parlor sold the rifle and the shotgun
for $400 each to the CI and an undercover agent during a
controlled buy.
Slightly more than eleven weeks passed. On July 11,
2018, Parlor was indicted on one count of unlawful
possession of a firearm by a convicted felon under 18 U.S.C.
§ 922(g)(1). Parlor was arrested the next day. Shortly
thereafter, agents searched Parlor’s residence, where they
found 21.63 grams of marijuana, $5,000 in cash, dozens of
small plastic baggies, two digital scales, and a .22-caliber
revolver. The revolver was discovered in a bed under a
mattress, and the marijuana was in two bags in a backpack
found at the foot of the same bed. The cash was found in a
men’s shirt in the closet. Baggies were located on top of a
dresser in the bedroom. A search of Parlor’s truck
uncovered numerous additional baggies “that are commonly
used for the distribution of narcotics.”
A search of Parlor’s storage unit, which also occurred on
July 12, 2018, turned up a semiautomatic rifle, a 9mm
handgun, and various ammunition. The 9mm handgun had
been reported stolen during a February 2018 burglary.
Parlor entered a guilty plea without a plea agreement.
The Probation Office’s pre-sentence report (PSR)
determined that under the United States Sentencing
Guidelines (U.S.S.G.), Parlor’s base offense level was 24
because he had two prior felony convictions of either a crime
of violence or a controlled substance offense. The PSR
recommended a three-level decrease for acceptance of
6 UNITED STATES V. PARLOR
responsibility. But it also recommended three sentence
enhancements.
The first was a two-level enhancement under U.S.S.G.
§ 2K2.1(b)(1)(A) because the “offense involved” three to
seven firearms, specifically five firearms (two sold, one in
Parlor’s home, and two in his storage unit). The second was
a two-level enhancement under U.S.S.G § 2K2.1(b)(4)(A)
because one of the firearms had been reported stolen. The
third was a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) for possessing firearms “in connection
with another felony offense, drug trafficking.” The PSR
noted that a firearm had been located along with the drugs,
cash, baggies, and scales found in Parlor’s residence. The
PSR also recounted that the CI “disclosed that he/she had
purchased narcotics from [Parlor] and [had] traded a firearm
for narcotics with [Parlor] in the past.”
The sentencing enhancements brought Parlor’s offense
level up to 29. Given Parlor’s criminal history category of
IV—which was based on a substantial record of past
criminal activity, including numerous drug offenses—the
PSR calculated a Guidelines range of 121 to 151 months,
which was reduced to the statutory maximum of 120 months.
Parlor filed written objections to the PSR, but the probation
officer declined to make any changes. Absent the three
enhancements, and with the three-level deduction for
acceptance of responsibility, Parlor’s Guidelines range
would have been 57 to 71 months.
At Parlor’s sentencing hearing, the district court adopted
the PSR’s findings and sentenced Parlor to 120 months in
prison, the statutory maximum. Defense counsel at the
hearing did not object to the multiple-firearms enhancement,
and the district court did not discuss it further. The district
court imposed the stolen-firearm enhancement based on
UNITED STATES V. PARLOR 7
“government records indicating that [a] firearm had been
reported as stolen.” And the court imposed the drug-
trafficking enhancement based on evidence that a gun was
found in a bed in Parlor’s home, in close proximity to drugs
and drug paraphernalia. The district court also noted that
Parlor had “exchanged guns for drugs” in the past with the
CI.
Parlor appeals, challenging the three sentencing
enhancements. “We review a district court’s construction
and interpretation of the Guidelines de novo and its
application of the Guidelines to the facts for abuse of
discretion.” United States v. Simon, 858 F.3d 1289, 1293
(9th Cir. 2017) (en banc) (quotations and alterations
omitted). The district court’s factual findings are reviewed
for clear error. United States v. Tulaner, 512 F.3d 576, 578
(9th Cir. 2008).
II
To apply the three sentencing enhancements, the district
court first had to connect the various firearms to each other
and then connect Parlor’s possession of an uncharged
firearm with another felony offense, here drug trafficking.
As we will explain, the district court correctly applied the
Sentencing Guidelines.
A
We begin with the two-level enhancement for Parlor’s
possession of five firearms. See U.S.S.G. § 2K2.1(b)(1)(A).
Parlor devotes limited argument to this issue, but it is the
logical place to begin. Parlor essentially argues that the
district court erred in imposing the multiple-firearms
enhancement because the three firearms found during the
searches of his house and storage unit were not sufficiently
8 UNITED STATES V. PARLOR
connected to his earlier possession of the two firearms for
which he was charged. He points specifically to the eleven-
week interval between the sale of two firearms during the
controlled buy and the searches that yielded the three
additional firearms. It is not apparent Parlor adequately
objected on this ground before the district court. See, e.g.,
United States v. Hayat, 710 F.3d 875, 895 (9th Cir. 2013)
(setting forth the standard for plain error review).
Regardless, Parlor’s challenge fails under any standard of
review.
U.S.S.G. § 2K2.1(b)(1)(A) provides that a two-level
enhancement is warranted “[i]f the offense involved” three
to seven firearms that were “unlawfully possessed.”
U.S.S.G. §§ 2K2.1(b)(1)(A), 2K2.1 cmt. n.5. Under the
Guidelines, the “offense” means “the offense of conviction
and all relevant conduct under § 1B1.3.” Id. § 1B1.1 cmt.
n.1(I). As applicable here, “relevant conduct” includes “all
acts and omissions committed . . . or willfully caused by the
defendant” “that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” Id.
§ 1B1.3(a)(1), (2); see also id. § 1B1.3(a)(2) (explaining that
this framework applies to “offenses of a character for which
§ 3D1.2(d) would require grouping of multiple counts,”
which includes firearm possession offenses under § 2K2.1).
Commentary to U.S.S.G. § 1B1.3 provides guidance on
the meaning of “same course of conduct or common scheme
or plan,” which are “closely related concepts.” Id. § 1B1.3
cmt. n.5(B); see also United States v. Lambert, 498 F.3d 963,
966 (9th Cir. 2007) (“The Guidelines, including
enhancements, are ordinarily applied in light of available
commentary, including application notes.”) (quotations
omitted). Offenses are part of a “common scheme or plan”
if they are “substantially connected to each other by at least
UNITED STATES V. PARLOR 9
one common factor, such as common victims, common
accomplices, common purpose, or similar modus operandi.”
U.S.S.G. § 1B1.3 cmt. n.5(B)(i). Offenses are “part of the
same course of conduct” if “sufficiently connected or related
to each other” such that they are “part of a single episode,
spree, or ongoing series of offenses.” Id. § 1B1.3 cmt.
n.5(B)(ii). “Factors that are appropriate to the determination
of whether offenses are sufficiently connected or related to
each other to be considered as part of the same course of
conduct include the degree of similarity of the offenses, the
regularity (repetitions) of the offenses, and the time interval
between the offenses.” Id.
Firearm offenses may be grouped under the “relevant
conduct” principles in § 1B1.3(a)(2). See U.S.S.G.
§ 3D1.2(d). Thus, “[w]hen a court determines the number
of firearms involved in an offense under U.S.S.G.
§ 2K2.1(b)(1), it looks to the relevant conduct section of the
guidelines (U.S.S.G. § 1B1.3(a)(2)) to determine how many
firearms come within the same course of conduct or perhaps
a common scheme or plan.” United States v. Santoro,
159 F.3d 318, 321 (7th Cir. 1998). Such grouping is
generally appropriate in cases like this one, “where the
firearms are otherwise legal but the defendant, usually due
to criminal history or prohibited status under federal law, is
not able to legally possess them.” United States v. Vargem,
747 F.3d 724, 732 (9th Cir. 2014).
Here, Parlor, a prohibited person, possessed two firearms
as of April 2018 and three more as of July 2018. These
repeated, substantially identical offenses are sufficiently
related to be considered part of the same course of conduct
(a series of unlawful firearm possessions) or common
scheme or plan (to possess firearms unlawfully). See id.;
U.S.S.G. § 1B1.3 cmt. n.5(B)(i)–(ii). There is no dispute—
10 UNITED STATES V. PARLOR
and Parlor’s guilty plea confirms—that Parlor was not
allowed to possess firearms because he was a convicted
felon. That conclusion applies equally to the two firearms
for which Parlor was charged as well as the three for which
he was not. When a person prohibited from possessing
firearms under federal law possesses other firearms in
addition to the ones for which he was charged, these other
uncharged firearms can be “relevant conduct” under the
Sentencing Guidelines. See United States v. Nichols,
464 F.3d 1117, 1123–24 (9th Cir. 2006) (citing United States
v. Brummett, 355 F.3d 343, 345 (5th Cir. 2003) (per curiam);
Santoro, 159 F.3d at 321; United States v. Windle, 74 F.3d
997, 1000–01 (10th Cir. 1996); United States v. Powell,
50 F.3d 94, 104 (1st Cir. 1995)).
But what about the eleven-week spread between Parlor’s
possession of the first two guns and his later possession of
three more? We hold that the interval between the
possession of the different firearms does not undermine their
relatedness. Nothing in the Sentencing Guidelines’
treatment of “same course of conduct” or “common scheme
or plan” requires that the unlawful possession of firearms
occur simultaneously. See U.S.S.G. § 1B1.3 cmt. n.5(B).
To the contrary, the concepts “common scheme or plan” or
“same course of conduct” by their very nature contemplate
conduct that may occur over a period of time. See id.
§ 1B1.3 cmt. n.5(B)(i) (explaining that a “common scheme
or plan” involves two or more offenses “substantially
connected to each other by at least one common factor,” and
using as an example a financial fraud that involved
“unlawfully transferred funds over an eighteen-month
period”); id. § 1B1.3 cmt. n.5(B)(ii) (explaining that “the
time interval between the offenses” is one factor that may be
considered in assessing whether multiple offenses are part of
the “same course of conduct,” and that “where the conduct
UNITED STATES V. PARLOR 11
alleged to be relevant is relatively remote to the offense of
conviction, a stronger showing of similarity or regularity is
necessary to compensate for the absence of temporal
proximity”).
The eleven-week time span here is well within the range
that courts have accepted in concluding that the unlawful
possession of additional firearms is conduct relevant to the
unlawful possession of firearms for which a defendant is
charged. In both Vargem, 747 F.3d at 732, and Nichols, 464
F.3d at 1123–24, we cited with approval the Fifth Circuit’s
decision in Brummett, which upheld two sentence
enhancements based on the uncharged possession of
additional firearms by a prohibited person, when the
defendant “possessed four firearms on three separate
occasions within a nine month period.” Brummett, 355 F.3d
at 345. Similarly, Nichols cited with approval both the
Seventh Circuit’s decision in Santoro, which upheld an
enhancement when there was six to nine months between
instances of unlawful firearm possession, see Santoro,
159 F.3d at 321, and the Tenth Circuit’s decision in Windle,
which involved four to five months between unlawful
possessions, see Windle, 74 F.3d at 1000–01; see also
Nichols, 464 F.3d at 1124. 1 1F
When compared to the time periods in these cases, the
eleven-week span here easily meets the standard for relevant
conduct for multiple firearm possessions by a person not
allowed to possess them. We note that the First Circuit has
held that “contemporaneous, or nearly contemporaneous,
1
The dissent points out factual differences between this case and
our prior decisions in Nichols and Vargem, but we have cited these cases
because they cited with approval the same on-point, out-of-circuit
precedent that we also find persuasive.
12 UNITED STATES V. PARLOR
possession of uncharged firearms” qualifies as conduct
relevant to a charge for unlawful possession of firearms.
Powell, 50 F.3d at 104. But Powell did not purport to require
“contemporaneous, or nearly contemporaneous, possession”
as a necessary condition for a relevant conduct finding. And
our discussion of the leading decisions in this area shows that
other courts have not imposed such a strict timing
requirement either.
Although Parlor does not argue the point, our fine
colleague in dissent claims that a hypothetical in Application
Note 14(E) of U.S.S.G. § 2K2.1(b)(6)(B) “implies that the
illegality of possession of a firearm, standing alone, is not
enough to establish conduct relevant to the illegal possession
of a different firearm.” The dissent acknowledges there is
no case applying this commentary to the question we
consider here, and for good reason. Section 2K2.1(b)(6)(B)
is not the relevant section of the Guidelines for evaluating
the relatedness between the charged and uncharged firearms
for purposes of the two-level multiple firearms enhancement
under § 2K2.1(b)(1)(A). Rather, § 2K2.1(b)(6)(B) is
relevant in this case only to the four-level enhancement
(discussed below) for possessing firearms “in connection
with another felony offense,” here drug trafficking.
Regardless, Application Note 14(E) simply instructs
that, when faced with multiple unlawful firearm possession
offenses, some of which are charged and some of which are
uncharged, courts should first conduct the relevant conduct
analysis under § 1B1.3(a)(2) and its accompanying
commentary, just as we have done here. Under the dissent’s
view, uncharged firearm possessions by a convicted felon
could apparently never be relevant conduct to a charged
firearm possession offense for purposes of the multiple-
firearms enhancement, except perhaps if the firearm
UNITED STATES V. PARLOR 13
possessions were “simultaneous” or the defendant used both
firearms to commit some other offense. That would be a
considerable departure from existing law, and one for which
Application Note 14(E) provides no support.
Where this leaves us is that Parlor’s possession of three
later-discovered, uncharged firearms qualifies as relevant
conduct, justifying his two-level enhancement for
possession of five firearms total. See U.S.S.G.
§ 2K2.1(b)(1)(A). One of these three firearms (the handgun
in the storage unit) was stolen. That in turn justified another
two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A).
Parlor argues there was insufficient evidence showing
that the handgun was stolen. But it is undisputed that the
gun was listed as stolen in the FBI’s National Crime
Information Center (NCIC) database, and the government’s
evidence was uncontroverted. Parlor has therefore not
demonstrated that the district court erred in applying the
stolen-firearm enhancement. See United States v. Gray,
942 F.3d 627, 631 (3d Cir. 2019) (upholding enhancement
where NCIC report identified the gun as stolen and the
defendant “produced no evidence to rebut it”); see also
United States v. Marin-Cuevas, 147 F.3d 889, 895 (9th Cir.
1998) (upholding enhancement where the probation officer
who prepared the PSR “obtained his information from a
reliable source,” namely, “the computerized criminal
history”).
B
The district court also imposed a four-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B) because Parlor possessed a
firearm in connection with the felony offense of drug
trafficking. This determination was based on the
(uncharged) revolver that was found near the drugs and other
14 UNITED STATES V. PARLOR
drug paraphernalia in Parlor’s house and, additionally, on the
CI’s statement about previously purchasing drugs from
Parlor in exchange for a gun. Parlor argues that any drug
trafficking was not sufficiently related to the conduct for
which he was charged, and that the CI’s statement was
unreliable. We conclude that the district court did not err in
imposing the enhancement.
1
U.S.S.G. § 2K2.1(b)(6)(B) applies if the defendant “used
or possessed any firearm . . . in connection with another
felony offense.” Application Note 14(A) explains that the
enhancement is warranted if the firearm “facilitated, or had
the potential of facilitating, another felony offense.”
U.S.S.G. § 2K2.1 cmt. n.14(A). However, “in the case of a
drug trafficking offense in which a firearm is found in close
proximity to drugs, drug-manufacturing materials, or drug
paraphernalia,” the § 2K2.1(b)(6)(B) enhancement
necessarily applies because “[i]n th[at] case[] . . . the
presence of the firearm has the potential of facilitating
another felony offense.” Id. § 2K2.1 cmt. n.14(B); see also
United States v. Chadwell, 798 F.3d 910, 916 (9th Cir.
2015).
When, as here, the firearm facilitating the separate felony
offense was not cited in the offense of conviction, “the
threshold question for the court is whether the two unlawful
possession offenses . . . were ‘part of the same course of
conduct or common scheme or plan.’” U.S.S.G. § 2K2.1
cmt. n.14(E)(ii) (quoting id. § 1B1.3(a)(2)). As we have
explained, the district court permissibly determined that
Parlor’s unlawful possession of the revolver was conduct
relevant to the charged firearm offense.
UNITED STATES V. PARLOR 15
From there, the district court had to find that Parlor
possessed this firearm “in connection with another felony
offense,” here drug trafficking. U.S.S.G. § 2K2.1(b)(6)(B).
The district court’s finding on this score was also
permissible and not an abuse of discretion. The revolver was
found in “close proximity” to both the drugs (which were
near the same bed) and the drug paraphernalia (which was in
the same house). Id. §§ 2K2.1(b)(6)(B), 2K2.1 cmt. n.14(B).
Parlor emphasizes that the amount of drugs found in his
home was not large. While true, the drugs were found near
a gun (that was hidden in a mattress), plastic baggies, and
$5,000 in cash, and not far from two digital scales.
Additional plastic baggies were found in Parlor’s truck.
While some of these items standing alone can be indicative
of lawful behavior, taken together they provide more than
sufficient evidence of drug trafficking, especially when
Parlor was on parole for a drug-trafficking conviction. See
United States v. Carrasco, 257 F.3d 1045, 1048 (9th Cir.
2001) (citing cases and explaining that while the defendant
“only had a small quantity of drugs and money in his
possession,” “the pink baggies and the scale with drug
residue found in [defendant’s] vehicle are by themselves
indicative of drug trafficking” because “[p]lastic baggies and
scales are well-known tools for the packaging and sale of
drugs”); United States v. Meece, 580 F.3d 616, 621 (7th Cir.
2009) (upholding enhancement where a search of the
defendant’s house revealed “two handguns and $3,400 in
cash, as well as a scale, several baggies, and a Tupperware
bowl all containing cocaine residue”).
While the evidence of drugs and drug paraphernalia was
sufficient to support a finding that Parlor was engaged in
drug trafficking, the district court did not abuse its discretion
in also treating as corroborative the CI’s statement about
16 UNITED STATES V. PARLOR
purchasing drugs from Parlor in the past, in exchange for a
firearm. The district court “may consider a wide variety of
information at sentencing that could not otherwise be
considered at trial and is not bound by the rules of evidence.”
United States v. Vanderwerfhorst, 576 F.3d 929, 935 (9th
Cir. 2009) (citations omitted). This includes “[h]earsay
evidence of unproved criminal activity not passed on by a
court.” Id. (quotations omitted). To successfully challenge
such evidence, Parlor must show as a threshold matter that
the information is “false or unreliable.” Id. (quotations
omitted). “Challenged information is deemed false or
unreliable if it lacks some minimal indicium of reliability
beyond mere allegation.” Id. at 936 (quotations omitted).
Here, the CI had already provided specific, accurate
intelligence that Parlor possessed a rifle and a shotgun,
which led to Parlor’s arrest and the discovery of drugs and
drug paraphernalia at his residence. Even if the CI’s account
of purchasing drugs from Parlor would not, on its own, have
supported the felony offense enhancement, Parlor has not
shown that the district court erred in considering the CI’s
account of Parlor’s prior drug activities as part of the totality
of the circumstances.
The dissent points to United States v. Kerr, 876 F.2d
1440 (9th Cir. 1989), in which we stated that “mere
statements of an anonymous informant, standing alone, do
not bear sufficient indicia of reliability to support a finding
of fact by even a preponderance of the evidence.” Id.
at 1446. That statement is not applicable here. The
informant in Kerr made an “an anonymous telephone call.”
Id. at 1441. In this case, agents met with the CI who told
them about purchasing drugs from Parlor and trading Parlor
a firearm for drugs. The next day, the CI was personally
involved with an undercover agent in the controlled buy of
UNITED STATES V. PARLOR 17
firearms that led to Parlor’s arrest. The CI here is not on the
same footing as the anonymous caller in Kerr. Regardless,
Kerr did not preclude the district court from considering the
CI’s statements about Parlor’s drug dealing in the context of
the evidence as a whole. See id. at 1445. The CI’s statement
is corroborative of other evidence that permitted the
conclusion that Parlor was engaged in drug trafficking.
Moreover, and contrary to the dissent’s unfounded claim
that this misstates the record, when Parlor objected to the
CI’s statement at the sentencing hearing, the district court
repeatedly offered to continue the sentencing to allow the CI
to testify, but Parlor declined this opportunity. The district
court made a point of offering to “continue the hearing” out
of “an abundance of caution” to allow the CI to testify, but
warned that if the court found the CI credible, “it may bear
upon the defendant’s acceptance of responsibility.” Parlor’s
telling decision to pass on the chance to probe the CI’s
account undermines his claim that the CI’s statement was
untruthful or inaccurate. Accordingly, the district court did
not err in citing the CI’s statement as further indication of
Parlor’s involvement in drug trafficking, even as this
additional evidence was not necessary for imposing the
U.S.S.G. § 2K2.1(b)(6)(B) enhancement.
2
Finally, Parlor argues that the district court should have
applied a heightened “clear and convincing” standard of
proof because the aggregated enhancements more than
doubled his Guidelines range. But Parlor did not ask the
district court to apply a heightened standard. Instead, in his
objections to the PSR Parlor affirmatively stated that the
usual preponderance of the evidence standard applied.
18 UNITED STATES V. PARLOR
Even if we treat this issue “as forfeited, as opposed to
waived,” United States v. Perez, 116 F.3d 840, 846 (9th Cir.
1997), our review is for plain error, as Parlor concedes. This
requires an “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Riley, 335 F.3d 919, 925
(9th Cir. 2003) (quotations and alterations omitted). “If all
three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quotations omitted).
Parlor cannot make this showing.
Parlor cannot show any error that was plain. As “a
general rule,” factual findings underlying a sentencing
enhancement need only be found by a preponderance of the
evidence. United States v. Valle, 940 F.3d 473, 479 (9th Cir.
2019). But we have held that when “the challenged
sentencing factors had an extremely disproportionate effect
on [the defendant’s] sentence relative to the offense of
conviction,” “clear and convincing evidence is required for
proof of the disputed enhancements.” United States v.
Jordan, 256 F.3d 922, 927, 929 (9th Cir. 2001).
Our case law has “not been a model of clarity” in
explaining when the higher standard should apply. Valle,
940 F.3d at 479 n.6 (quoting United States v. Berger,
587 F.3d 1038, 1048 (9th Cir. 2009)). Our decision in
Jordan summarized the relevant factors from previous cases
as follows:
(1) [W]hether the enhanced sentence falls
within the maximum sentence for the crime
alleged in the indictment; (2) whether the
enhanced sentence negates the presumption
of innocence or the prosecution’s burden of
proof for the crime alleged in the indictment;
UNITED STATES V. PARLOR 19
(3) whether the facts offered in support of the
enhancement create new offenses requiring
separate punishment; (4) whether the
increase in sentence is based on the extent of
a conspiracy; (5) whether the increase in the
number of offense levels is less than or equal
to four; and (6) whether the length of the
enhanced sentence more than doubles the
length of the sentence authorized by the
initial sentencing guideline range in a case
where the defendant would otherwise have
received a relatively short sentence.
Jordan, 256 F.3d at 928 (quotations omitted). Later cases,
however, have focused specifically on the last two factors.
See Valle, 940 F.3d at 479–80 (discussing cases). As we
noted in Valle, recent decisions had “disregarded the first
four factors” and “focused entirely on how enhancements
increased both the offense level and the length of the
recommended Guidelines range.” Id. at 479. For his part,
Parlor focuses only on the last two factors as well.
In determining how these two factors (and the others)
cut, we consider only the cumulative effect of “disputed
enhancements.” See Jordan, 256 F.3d at 927; see also Riley,
335 F.3d at 925. As noted above, Parlor did not challenge
the multiple-firearm enhancement at the sentencing hearing.
His earlier objections to the draft PSR likewise challenged
the two other enhancements. As to the multiple-firearm
enhancement, Parlor’s objections stated in just one sentence
that it was “not based on relevant conduct,” without
elaboration. At no point, moreover, did Parlor challenge any
“factual finding underlying [that] sentencing enhancement.”
Valle, 940 F.3d at 479.
20 UNITED STATES V. PARLOR
Removing the two-level multiple-firearm enhancement
from the analysis, the remaining two enhancements did
increase Parlor’s offense level by more than four points. See
id. But they did not more than double his recommended
Guidelines range. Id. Absent these two enhancements—and
still giving Parlor his three-level deduction for acceptance of
responsibility—Parlor’s final offense level would have been
23, with a resulting Guidelines range of 70–87 months. His
sentencing range of 121–151 months with all enhancements
was not double this length, and in any event, it was capped
at the statutory maximum of 120 months. Because the two
key factors under our cases point in different directions, the
district court at the very least did not plainly err in not
applying a clear and convincing standard that Parlor never
requested. See Riley, 335 F.3d at 927.
Even if there were error, Parlor still cannot show that it
affected his “substantial rights.” Id. at 925. Parlor did not
dispute that (1) each of the five firearms belonged to him;
(2) the FBI’s NCIC database indicated that one of the
firearms was stolen; and (3) drugs and drug paraphernalia
were found in Parlor’s home and truck. With respect to the
enhancement for possessing a firearm in connection with
another felony offense, it is more than apparent that the
district court would have applied this enhancement even
without the CI’s statement. Indeed, the district court found
that the enhancement “clearly” applied before turning to the
CI’s statement, and the court likewise stated that an
evidentiary hearing would be “completely unnecessary.”
Parlor has not shown that any error was prejudicial or that
the enhancements “could not have been proved by clear and
convincing evidence.” United States v. Gonzalez, 492 F.3d
1031, 1040 (9th Cir. 2007) (quoting Jordan, 256 F.3d at 930)
(emphasis omitted).
UNITED STATES V. PARLOR 21
* * *
Because the district court did not err in imposing the
three enhancements, we affirm the sentence.
AFFIRMED.
BERZON, Circuit Judge, dissenting:
I dissent. Commentary accompanying the U.S.
Sentencing Guidelines (“Guidelines”) strongly suggests that
illegal possession of additional firearms, standing alone, is
not enough to satisfy the requirements for relevant conduct.
Importantly, this commentary was added after the case law
cited by the majority. Further, even if possession of all of
Parlor’s firearms was relevant conduct, the district court
abused its discretion by finding that Parlor was engaged in
drug trafficking by relying on hearsay without establishing
its reliability.
I.
Parlor was indicted for and convicted of illegal
possession of two firearms. See 18 U.S.C. § 922(g)(1).
During sentencing, the government sought, and the district
court applied, three sentencing enhancements, all of which
depended upon the discovery, eleven weeks after the
incident that underlay Parlor’s conviction, of two guns in
Parlor’s storage unit and one in his home. The threshold
question is whether the three additional firearms are relevant
conduct.
22 UNITED STATES V. PARLOR
Guidelines’ commentary presents the following
instructive example about the scope of relevant conduct in
the context of unlawful possession of multiple firearms:
Defendant B’s offense of conviction is for
unlawfully possessing a shotgun on October
15. The court determines that, on the
preceding February 10, Defendant B
unlawfully possessed a handgun (not cited in
the offense of conviction) and used the
handgun in connection with a robbery.
U.S.S.G. § 2K2.1 cmt. n.14(E)(ii). The “threshold question”
posed in the commentary to the Guidelines is whether
Defendant B’s handgun possession is relevant conduct. Id.
As the commentary explains, if it is relevant conduct, then
Defendant B would be responsible for both firearms and
would be subject to a sentencing enhancement for “use[] or
possess[ion] [of] any firearm . . . in connection with another
felony offense.” Id. § 2K2.1(b)(6)(B). On the other hand, “if
the court determines that the two unlawful possession
offenses were not ‘part of the same course of conduct or
common scheme or plan,’ then the handgun possession
offense is not relevant conduct to the shotgun possession
offense and [the sentencing enhancement] does not apply.”
Id. § 2K2.1 cmt. n.14(E)(ii) (quoting id. § 1B1.3).
On its face, the commentary implies that the illegality of
possession of a firearm, standing alone, is not enough to
establish conduct relevant to the illegal possession of a
different firearm, regardless of the specific enhancement at
issue. If it were otherwise, Defendant B’s unlawful
possession of the handgun posited in the example would
necessarily be relevant conduct for the unlawful possession
UNITED STATES V. PARLOR 23
of the shotgun, and there would be no need for further
inquiry. 1
Further, this commentary was part of a 2014 amendment
to the Guidelines which “add[ed] examples to the
commentary to clarify how relevant conduct principles are
intended to operate” in felon-in-possession cases such as this
one. 79 Fed. Reg. 26,007 (May 6, 2014). The commentary
was not in existence at the time of either of the Ninth Circuit
cases cited by the majority—United States v. Vargem,
747 F.3d 724 (9th Cir. 2014), and United States v. Nichols,
464 F.3d 1117 (9th Cir. 2006)—nor have I found any
published circuit case taking that commentary into account.
Importantly, Stinson v. United States, 508 U.S. 36 (1993),
held that such commentary “is authoritative unless it violates
the Constitution or a federal statute, or is inconsistent with,
or a plainly erroneous reading of that guideline.” Id. at 38.
We have continued to follow Stinson after United States v.
Booker, 543 U.S. 220 (2005), which made the Guidelines no
longer mandatory, see United States v. Prien-Pinto, 917 F.3d
1155, 1157–58 (9th Cir. 2019), cert. denied, 140 S. Ct. 172(2019) (citing Freeman v. United States, 564 U.S. 522, 529
(2011) and United States v. Thornton, 444 F.3d 1163, 1165
n.3 (9th Cir. 2006)), and after Kisor v. Wilkie, 139 S. Ct.
1The commentary’s distinction between a shotgun and a handgun
makes clear that one firearm was cited in the offense of conviction while
the other was not. No difference between a shotgun and a handgun could
be relevant for purposes of applying the sentencing enhancement at
issue. In the Guidelines, the term “firearm” “has the meaning given that
term in 18 U.S.C. § 921(a)(3).” U.S.S.G. § 2K1.1 cmt. n.1. 18 U.S.C.
§ 921(a)(3) provides that “[t]he term ‘firearm’ means (A) any weapon
(including a starter gun) which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive; (B) the
frame or receiver of any such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device.”
24 UNITED STATES V. PARLOR
2400 (2019), which clarified the scope of deference to an
agency’s interpretation of its own rules, see United States v.
Crum, 934 F.3d 963, 966 (9th Cir. 2019); United States v.
Cuevas-Lopez, 934 F.3d 1056, 1061 (9th Cir. 2019); United
States v. Wang, 944 F.3d 1081, 1086 (9th Cir. 2019); United
States v. George, 949 F.3d 1181, 1185 (9th Cir. 2019);
United States v. Herrera, 974 F.3d 1040, 1047 (9th Cir.
2020). 2
Despite the commentary’s guidance, the majority
concludes that Parlor’s “repeated, substantially identical
offenses are sufficiently related to be considered part of the
same course of conduct (a series of unlawful firearm
possessions) or common scheme or plan (to possess firearms
unlawfully).” Opinion at 9. For support, the majority cites,
among other cases, Nichols. But Nichols shows the error in
the majority opinion. Nichols involved a defendant who pled
guilty to being a felon in possession of two firearms.
464 F.3d at 1118. The question in Nichols was whether an
additional gun, not charged in the indictment, which the
defendant used as part of an earlier assault, should be
2
Stinson treated Guidelines commentary “as an agency’s
interpretation of its own legislative rule.” 508 U.S. at 44. Kisor recently
clarified that “the possibility of [such] deference can arise only if a
regulation is genuinely ambiguous.” 139 S. Ct. at 2414. In this case, the
relevant Guidelines commentary interprets the scope of both the specific
Guidelines enhancement for “use[] or possess[ion] [of] any firearm . . .
in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(6)(B),
and the more general threshold Guidelines requirement that only relevant
conduct, id. § 1B1.3, is included as part of the offense for sentencing
purposes. While Stinson clarified that commentary “explains the
guidelines and provides concrete guidance as to how even unambiguous
guidelines are to be applied in practice,” 508 U.S. at 44 (emphasis
added), the scope of relevant conduct as applied to these facts is
ambiguous. As a result, we owe deference to the instructive example in
the Guidelines commentary.
UNITED STATES V. PARLOR 25
considered relevant conduct for sentencing purposes. Id.
at 1120. The defendant possessed the additional gun at the
same time as the guns charged in the indictment. Id. at 1118–
19. Nichols did not rely on illegality of possession alone to
support its relevant conduct finding. Instead, Nichols held
that the guns charged in the indictment and the additional
gun was part of “the same common and ongoing scheme—a
methamphetamine-linked burglary ring that trafficked in
stolen firearms.” Id.at 1123.
In this case, there is no similar common or ongoing
scheme linking the two firearms Parlor sold, which were the
basis for the indictment, with the three firearms found eleven
weeks later in his storage unit and home. Parlor sold the two
guns charged in the indictment for $400 each. In contrast,
the district court found Parlor used the gun later found in his
home to facilitate drug trafficking. Further, there is no
indication as to how Parlor acquired the two guns in the
storage unit, when he acquired them, or how he used them,
if at all.
The majority also cites Vargem, but Vargem is not on
point. Vargem explained that “[r]elevant conduct in firearms
cases generally arises under one of two scenarios.” 747 F.3d
at 732. The first scenario—“where the firearms are
otherwise legal but the defendant, usually due to criminal
history or prohibited status under federal law, is not able to
legally possess them”—was not the subject of Vargem. Id.
Vargem instead considered the second scenario—“where the
defendant is not a prohibited person per se, but the firearms
he possessed were illegal for him, or anyone else, to own.”
Id. The majority is thus left to rely on the fact that Vargem,
as well as Nichols, cites with approval several out-of-circuit
decisions, such as United States v. Powell, 50 F.3d 94 (1st
26 UNITED STATES V. PARLOR
Cir. 1995), in describing the contours of the first scenario.
Opinion at 10–11.
Powell held that “the contemporaneous, or nearly
contemporaneous, possession of uncharged firearms is, in
this circuit, relevant conduct in the context of a felon-in-
possession prosecution.” 50 F.3d at 104. But Powell was
decided before the commentary to the Guidelines was added.
“[P]rior judicial constructions of a particular guideline
cannot prevent the Commission from adopting a conflicting
interpretation.” Stinson, 508 U.S. at 46. In any event, there
is no evidence in the record here that Parlor’s possession of
the uncharged firearms was “contemporaneous, or nearly
contemporaneous.” Id.The majority ultimately recognizes that Powell provides
no support for the generic rule it announces linking illegally
possessed guns as related conduct as long as the lapse of time
between the periods of possession does not exceed some
undefined extent—many months, at least. Opinion at 10–12.
The majority asserts only that “Powell did not purport to
require ‘contemporaneous, or nearly contemporaneous
possession’” as a necessary condition for a relevant conduct
finding.” Opinion at 12. Still, Powell’s limited holding
weakens the majority’s reliance on Vargem and Nichols, as
the connection between the firearms in those cases was
substantive, not simply a certain time period. Further, as I
have explained, commentary to the Guidelines strongly
suggests that illegality of possession alone is not sufficient
for a relevant conduct finding. 3
3
The majority suggests that, under my view, “uncharged firearm
possessions by a convicted felon could apparently never be relevant
conduct to a charged firearm possession offense for purposes of the
UNITED STATES V. PARLOR 27
Additionally, the relevant conduct determination should
be subject to a higher evidentiary standard, of clear and
convincing evidence, which the government here cannot
meet with regard to whether the guns found later were part
of the same course of conduct. See United States v. Valle,
940 F.3d 473, 479 (9th Cir. 2019) (quoting United States v.
Jordan, 256 F.3d 922, 930 (9th Cir. 2001)). The majority
maintains that in determining whether such a standard
should apply, the court should not consider the impact of the
sentencing enhancement for multiple firearms, because
Parlor did not specifically challenge that enhancement
during the sentencing hearing. But Parlor did file a written
objection about the relevant conduct determination. And,
contrary to the majority’s assertion, Opinion at 19,
challenging a relevant conduct finding does amount to
challenge of a “factual finding underlying [that] sentencing
enhancement,” Valle, 940 F.3d at 479, for the simple reason
that relevant conduct is a threshold inquiry, without which,
none of the sentencing enhancements would apply.
II.
Even if the firearm found in Parlor’s home is relevant
conduct, the district court erred in applying the
enhancement, discussed above, for “use[] or possess[ion]
[of] any firearm … in connection with another felony
multiple-firearms enhancement, except perhaps if the firearm
possessions were ‘simultaneous.’” Opinion at 12–13. But that
misunderstands my point. The enhancement was appropriate in Nichols,
which held that the guns charged in the indictment and the additional gun
were part of “the same common and ongoing scheme—a
methamphetamine-linked burglary ring that trafficked in stolen
firearms.” 464. F.3d at 1123. The enhancement is not appropriate here
because there is no similar substantive connection between the firearms
Parlor sold and those found later in his home and storage unit.
28 UNITED STATES V. PARLOR
offense,” U.S.S.G. § 2K2.1(b)(6)(B), because the evidence
is too unreliable and weak to support the finding that Parlor
was engaged in drug trafficking.
The district court’s conclusion that Parlor was engaged
in drug trafficking rested in part on information provided to
law enforcement by a confidential informant and relayed by
them to a probation officer. In my view, a single statement
by a probation officer in the presentence report that a
confidential informant had “disclosed” to federal agents that
“he/she had purchased narcotics from [Parlor] and traded a
firearm for narcotics with [him] in the past,” is a patently
insufficient evidentiary basis for determining that Parlor was
engaged in drug trafficking.
“Because . . . ‘a defendant clearly has a due process right
not to be sentenced on the basis of materially incorrect
information,’ . . . we require that ‘some minimal indicia of
reliability accompany a hearsay statement.’” United States
v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995) (quoting United
States v. Petty, 982 F.2d 1365, 1369 (9th Cir.1993)).
According to the majority, the informant’s statement bore
such an “indicia of reliability,” id. (quoting Petty, 982 F.3d
at 1369), because the informant “had already provided
specific, accurate intelligence that Parlor possessed a rifle
and a shotgun,” as ultimately charged in the indictment.
Opinion at 16. But “mere statements of an anonymous
informant, 4 standing alone, do not bear sufficient indicia of
4
The presentence investigation report explains that the information
regarding the confidential informant “was provided by the United States
Attorney’s Office for the District of Idaho.” Even so, there is no
indication that the probation officer who prepared the report interviewed
the confidential informant or assessed the confidential informant’s
reliability. Further, without an evidentiary hearing, the district court had
UNITED STATES V. PARLOR 29
reliability to support a finding of fact by even a
preponderance of the evidence.” United States v. Kerr,
876 F.2d 1440, 1446 (9th Cir. 1989) (citing United States v.
Weston, 448 F.2d 626, 633–34 (9th Cir.1971)); cf. Lee v.
Illinois, 476 U.S. 530, 546 (1986) (recognizing the “time-
honored teaching that a codefendant’s 5 confession
inculpating the accused is inherently unreliable”). Further,
Kerr specifically “reject[ed] the government’s contention
that because the informant provided correct information . . .
his statements are sufficiently reliable.” 876 F.2d at 1446 n.2
(citing Weston, 448 F.2d at 633–34).
The majority’s suggestion that Parlor’s “decision to pass
on the chance to probe the [informant’s] account undermines
his claim that the [informant’s] statement was untruthful or
inaccurate,” Opinion at 17, misstates the record. The
presentence report initially justified the drug trafficking
enhancement at issue based only on the items found in
Parlor’s home. The report stated: “The firearms were
possessed in connection with another felony offense, drug
trafficking. The firearms were located along with
21.63 grams of marijuana, $5,000 in cash, plastic baggies,
and two digital scales. The offense level is increased by
four.” When the district court remarked during the
sentencing hearing that the informant’s statement might also
support the drug trafficking enhancement, defense counsel
no basis to assess Parlor’s argument that the confidential informant “is
not a reliable source.”
5
The confidential informant was not charged as Parlor’s co-
defendant, and there is no information in the record that the government
charged the confidential informant in a separate proceeding.
Nonetheless, the government presumably could have charged the
confidential informant for at least the purchase of illegal narcotics. See
21 U.S.C. § 841.
30 UNITED STATES V. PARLOR
objected. The district court initially suggested that an
evidentiary hearing may be necessary to resolve the
reliability of the informant, but ultimately withdrew that
suggestion: “Let me address the objections. . . . [A] moment
ago, I suggested we might need an evidentiary hearing, but
I’m not going to put everyone through that because I do think
it’s completely unnecessary.” Such a hearing was
unnecessary in the district court’s view in part because
defense counsel’s objection was untimely, 6 and in part
because “under the facts of this case, [the confidential
informant’s statements] wouldn’t even be suppressible.”
The district court thus considered the informant’s statement
and found it “equally important” in concluding Parlor was
engaged in drug trafficking.
Further, the items found in Parlor’s home suggest that
Parlor was engaged in drug possession, not drug trafficking.
The amount of marijuana found in Parlor’s home was less
than one ounce, which is an amount fully consistent with
personal use. Moreover, Idaho ultimately charged Parlor for
drug possession, not drug trafficking, and the cash found in
the house was returned to Parlor’s girlfriend, not Parlor.
Finally, these days, most households have baggies, and
many have digital scales.
6
It was not. Both the initial and final presentence report recounted
in the “Offense Conduct” section that a confidential informant had made
the statement regarding trading a gun for drugs to a federal officer, but,
as noted, did not rely on the statement for its truth in calculating the
appropriate guideline enhancement. The defendant had no basis for
objecting to the presentence report’s factual statement that a federal
officer had told the probation officer something an unnamed person said.
It was only when the district court suggested relying on the hearsay as
true that a basis for objection arose.
UNITED STATES V. PARLOR 31
In the absence of an evidentiary hearing to determine the
reliability of the confidential informant, and given the
weakness of the circumstantial evidence found in Parlor’s
home, the district court erred in concluding Parlor was
engaged in drug trafficking.
III.
For each of these reasons, I would have vacated Parlor’s
sentence and remanded for resentencing and so dissent.