Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
D.C. No. CR-99-00282-EHC
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.
Before WALLACE, FISHER, and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Appellant Randy Flores ("Flores") appeals his sentence after pleading guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Flores asserts that the district court erred by failing to apply a clear and convincing standard of proof when imposing a two-level enhancement under U.S.S.G. § 2k2.1(b)(4) for possession of a firearm with an obliterated serial number and a four-level enhancement under U.S.S.G. § 2k2.1(b)(5), for possessing or transferring a firearm with reason to believe it would be used in connection with another felony. Flores further asserts the district court had insufficient evidence to impose the four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(5).
This Court reviews de novo a trial court application of the standard of proof used to determine sentence enhancements. See United States v. Hopper, 177 F.3d 824, 832 (9 th Cir.1999) cert. denied in Ries v. United States, 120 S.Ct. 1179 (2000). This Court also reviews de novo the district court's application of the Sentencing Guidelines, and reviews for clear error the district court's factual findings in the sentencing phase. See United States v. Polanco, 93 F.3d 555, 564 (9 th Cir.1996).
Flores' contention that the district court should have employed the higher standard of proof will not be considered because Flores waived this claim by failing to object below to the standard of proof. See Neal v. Shimoda, 131 F.3d 818, 827 n. 11 (9 th Cir.1997) (sentence enhancement issues raised for the first time on appeal are generally not considered even though this Court has discretion to do so).
Flores' argument that the district court had insufficient evidence to impose the four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(5) fails. Section 2k2.1(b)(5) of the United States Sentencing Guidelines provides as follows:
If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels.
Flores does not dispute that the drive-by shooting was "another felony offense." The district court found that Flores possessed the .25 caliber handgun and then transferred it to his cousin with reason to believe that his cousin would fire the handgun into a residence during a drive-by shooting while Flores was driving. The district court also found that the gun Flores transferred to his cousin was the one used in the shooting. The facts before the district court supported the district court's findings. Therefore, the district court did not err when imposing a four-level enhancement under § 2K2.1(b)(5) for possessing or transferring a firearm with reason to believe that it would be used in connection with another felony offense.
AFFIRMED.