                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 13 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-10209

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00512-GMN-
                                                 GWF-1
  v.

DARIAN CROMWELL,                                 MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                             Submitted June 11, 2013 **
                              San Francisco, California

Before: O’SCANNLAIN and HURWITZ, Circuit Judges, and PIERSOL, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
      Darian Cromwell appeals the sentence imposed after his convictions of one

count of felon in possession of a firearm and two counts of felon in possession of

ammunition in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      Cromwell argues that the district court erred in setting the base offense level

under the Sentencing Guidelines. In particular, Cromwell argues that the district court

erred in finding that “the offense involved a . . . semiautomatic firearm that is capable

of accepting a large capacity magazine,” U.S.S.G. § 2K2.1(a)(1), because a magazine

was not “in close proximity to the firearm,” id. cmt. n.2.

      The firearm in this case was stored in a tote “mere feet” from a blue gym bag

containing a large capacity magazine. An officer testified without contradiction that

one could reach the magazine by bending down and then access the gun from the same

spot by simply “standing up and looking to the left and reaching up.” Under these

facts, it is plain that the two items were “in close proximity.” See United States v.

Heldberg, 907 F.2d 91, 94 (9th Cir. 1990) (holding in another context that an item is

“in close proximity” if it is “a few feet away and readily accessible . . . in the event

[the defendant] desired to use it to commit an act of violence”).

      AFFIRMED.




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