Appeal from the United States District Court for the Northern District of Iowa.
The opinion of the court was delivered by: Colloton, Circuit Judge
Before RILEY, SMITH, and COLLOTON, Circuit Judges.
Dantae Bates pled guilty to unlawful possession of a firearm and ammunition as an unlawful user of controlled substances. The district court*fn1 sentenced Bates to 86 months' imprisonment. On appeal, Bates argues that the district court incorrectly calculated the advisory guideline range by imposing a two-level increase under USSG § 2K2.1(b)(4)(A) for possession of a stolen firearm. He also contends that the district court imposed a substantively unreasonable sentence. We affirm.
In April 2007, Bates fired three shots into the air outside of Legends Bar in downtown Cedar Rapids, Iowa, to frighten people who were fighting with his friends. Bates drove away and was stopped by officers a short distance from the bar. A search of his vehicle uncovered a loaded pistol with thirteen rounds of ammunition. When questioned about the firearm, Bates denied knowing anything about it or ever firing a gun. After police informed him that a gunshot residue test conducted on his hands was positive, Bates admitted to shooting various firearms in the past week around Cedar Rapids and elsewhere. Bates also stated that he had smoked marijuana a few hours before, and that he was a daily user of marijuana.
Ballistics tests revealed that shell casings found outside of Legends Bar matched the pistol recovered from Bates. A firearms trace of the pistol's serial number revealed that it was purchased by David Ellis in 1998. Timothy Hunt, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, interviewed Ellis in August 2007. Ellis stated that the firearm belonged to him, that it was no longer in his possession, and that he had forgotten it in the restroom of the Starlight Lounge in Cedar Rapids in 2007. Ellis could not recall exactly when he lost the gun, but stated that he called the Starlight Lounge a couple of days after realizing that it was missing, and no one had located it. He did not report the gun stolen to the police.
In November 2007, a grand jury returned an indictment charging Bates with knowing possession of a firearm and ammunition as an unlawful user of marijuana, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). In April 2008, Bates appeared before a magistrate judge and entered a plea of guilty pursuant to a plea agreement. The district court later accepted the plea on the recommendation of the magistrate judge.
The presentence report recommended an advisory guideline range of 57 to 71 months' imprisonment, corresponding to a total offense level of 23 and criminal history category III. The total offense level was derived from a base offense level of 20, USSG § 2K2.1(a)(4)(B), a two-level increase because the firearm was stolen, id. § 2K2.1(b)(4)(A), a four-level increase for possessing the firearm or ammunition in connection with another felony offense, id. § 2K2.1(b)(6), and a three-level decrease for acceptance of responsibility. Id. § 3E1.1(b). Bates objected to the two-level increase under § 2K2.1(b)(4)(A), denying that he stole the firearm from Ellis, and arguing that it was unclear whether the firearm was actually stolen or simply lost by Ellis.
At the sentencing hearing in September 2008, Ellis testified about how he misplaced the firearm. He stated that he used to carry the gun as part of his job as a security guard, and that in mid-March 2007, he accidentally left it in the restroom of the Starlight Lounge. He noted that he suffered from muscular dystrophy and walked into the restroom because he was feeling sick. He unhooked a holster from his belt, placed the holster -- which contained the gun -- on the restroom counter, and put his coat over it. According to Ellis, he was "in a hurry to get back out, and . . . just probably left it there out of stupidity." The next day, he called the Starlight Lounge, but nobody had turned it in. Ellis testified that he did not sell the gun or authorize anyone to take it, and that he did not know who had taken it.
On cross-examination, Ellis asserted that although he believed he left the gun in the Starlight Lounge, he was not sure, and he was just assuming that he had done so. He also testified that he did not report the gun stolen, and that there was a possibility that his girlfriend had taken the gun, but that she denied doing so. Special Agent Hunt also testified at the sentencing hearing, noting that Ellis's testimony at the hearing essentially mirrored his statements during the August 2007 interview.
The court then heard argument from counsel regarding application of the two-level increase under § 2K2.1(b)(4)(A). Bates maintained that the government failed to show that the gun was stolen, because no one knew what really happened to it. He argued that Ellis's girlfriend could have taken it, that Ellis was not credible, and that it was just as likely that the gun was not stolen. The government countered that regardless of what happened, the gun was stolen, because whoever took it did so without Ellis's authorization.
The court then made the following findings.
The Court does find Mr. Ellis to be a believable witness. Mr. Ellis is obviously suffering from muscular dystrophy. At the time that the firearm was stolen, he was afflicted with this disease. He was in a bar. He was ill. He testified as to how it was that it came off his holster . . . -- he took the holster off the belt, put it on the counter, and put his coat over it while he was in the restroom using the restroom, and well could have left it there. But in any event, I agree with the [government's] analysis here. There is -- regardless of who stole [the gun] or when it was stolen, it ended up in the hands of Mr. Bates and became involved in this offense. Mr. Bates did ...