                                                                            FILED
                           NOT FOR PUBLICATION                               MAY 09 2011

                                                                         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. 10-30265

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00419-JCC-1

  v.
                                                 MEMORANDUM *
MICHAEL EUGENE MCCLAIN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                              Submitted May 4, 2011 **
                                Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Michael McClain appeals his jury conviction and sentence for being a felon

in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

The case against McClain relied primarily upon the testimony of an informant,


        *
             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).
who was McClain’s girlfriend at the time. The informant initially alerted law

enforcement that McClain and two friends were planning to rob a house that was

known to have marijuana and cash. Based on subsequent indications from the

informant that McClain had a gun and was moving forward with the plan, law

enforcement arrested McClain for possession of the gun. On appeal, McClain

contends that the district court abused its discretion by allowing evidence of the

robbery plan at trial and by enhancing his sentence on the ground that he planned

to use the gun to commit the robbery. We have jurisdiction under 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291, and we affirm.1

      “[T]he district court’s admission of evidence is reviewed for an abuse of

discretion.” United States v. Hernandez, 109 F.3d 1450, 1452 (9th Cir. 1997) (per

curiam). The district court’s application of the sentencing guidelines to the facts is

reviewed for an abuse of discretion, and its findings of fact in support of the

sentence are reviewed for clear error. United States v. Garner, 490 F.3d 739, 742

(9th Cir. 2007).

      1. McClain contends that the district court abused its discretion by allowing

evidence of the robbery plan at trial, over his objection, because there was



      1
             The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.

                                           2                                      10-30265
insufficient evidence linking the robbery plan to his possession of the gun. He

contends that the evidence of the robbery plan was impermissible character

evidence under Federal Rule of Evidence 404(b). To the contrary, the evidence

introduced at trial sufficiently raised the inference that McClain intended to use the

gun as part of the robbery plan. Within a few weeks of his arrest, McClain had

discussed the robbery plan with a friend, including the possibility of breaking into

the targeted house through a bottom window. The day prior to his arrest, McClain

picked up the gun from another friend who was part of the robbery plan. On the

night of the arrest, the informant warned law enforcement that McClain had the

gun with him, was agitated, and was moving forward with the plan.

      While the informant’s testimony was the main evidence of the robbery plan,

her testimony was supported by independent evidence. McClain was found with

the address of the targeted house in his wallet, and the owner of the house testified

that McClain’s friend knew the house contained drugs and cash. Although

McClain has suggested reasons why the evidence might have been discredited or

interpreted differently, such arguments do not undercut the sufficiency of the

evidence. Cf. United States v. Magallon-Jimenez, 219 F.3d 1109, 1114 (9th Cir.

2000) (“It is the province of the trier of fact ‘to determine the credibility of




                                            3                                      10-30265
witnesses, resolve evidentiary conflicts, and draw reasonable inferences from

proven facts.’”).

      As the district court concluded, the evidence of the planned robbery was

admissible because it explained the context in which McClain’s possession offense

occurred. United States v. Collins, 90 F.3d 1420, 1428-29 (9th Cir. 1996). The

evidence was also admissible under Rule 404(b) because it tended to prove the

material fact that McClain knowingly possessed the gun, the possession was

contemporaneous with the robbery plan, and, if credited, the evidence sufficiently

supported the alleged robbery plan. See United States v. Ramirez-Jiminez, 967

F.2d 1321, 1326 (9th Cir. 1992). Accordingly, the district court did not abuse its

discretion in admitting evidence of the robbery on either of these bases.

      2. McClain contends that the district court improperly enhanced his

sentence under U.S.S.G. § 2K2.1(b)(6) based on the alleged robbery plan because

the evidence of the plan was thin, as was the evidence connecting the gun to the

plan. As noted, the evidence was sufficient. Thus, the district court did not

commit clear error in finding that McClain intended to use the gun as part of the

robbery plan and did not abuse its discretion in enhancing his sentence

accordingly.

      AFFIRMED.


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