                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 27 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30146

               Plaintiff - Appellee,             D.C. No. 4:12-cr-00078-DLC

  v.
                                                 MEMORANDUM*
ROBERT KIRK BELTON,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                           Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Robert Kirk Belton appeals from the district court’s judgment and

challenges the 88-month sentence imposed following his guilty-plea conviction for

possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 841(b)(1)(B). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

          *
             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).
      Belton contends that the district court erred by imposing a two-level

enhancement under U.S.S.G. § 2D1.1(b)(1) for the possession of a firearm. He

contends that the government failed to present any evidence that a firearm was

present during his offense, and that any connection between the recovered firearms

and his offense is clearly improbable. We review a district court’s interpretation of

the Guidelines de novo and its findings of fact for clear error. See United States v.

Lopez-Sandoval, 146 F.3d 712, 714 (9th Cir. 1998). The record reflects that two

assault rifles and a hunting rifle were discovered inside the vehicle that Belton used

to transport methamphetamine, and that Belton threw methamphetamine and a

handgun out of his vehicle’s window during flight from law enforcement. Under

these circumstances, the district court did not clearly err in concluding that Belton

possessed firearms in connection with his drug offense. See id. at 715

(enhancement is proper if guns were possessed at any time during course of

criminal conduct); United States v. Heldberg, 907 F.2d 91, 92-94 (9th Cir. 1990)

(connection between a handgun in defendant’s vehicle and the controlled

substances found in defendant’s pockets at the time of his arrest was not clearly

improbable).

      Belton also contends it is a violation of due process to require him to show

that it is “clearly improbable” that the weapons were connected with his offense.


                                           2                              13-30146
As Belton concedes, this argument is foreclosed by United States v. Restrepo, 884

F.2d 1294, 1296 (9th Cir. 1989), which we decline to revisit.

      Belton finally contends that the district court erred by imposing a two-level

enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight from

law enforcement. He contends that his conduct does not justify the enhancement

and that law enforcement was responsible for escalating the encounter. The record

reflects that, during the course of Belton’s flight, he drove into oncoming traffic at

high speed, forced several motorists off the highway, and collided with a tractor-

trailer while an officer was standing on the running board of his vehicle. Under

these circumstances, the district court did not clearly err in concluding that

Belton’s flight created a substantial risk of death or serious bodily injury to

another. See United States v. Reyes-Oseguera, 106 F.3d 1481, 1483-84 (9th Cir.

1997).

      AFFIRMED.




                                           3                               13-30146
