                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 12 2010

                                                                       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. 09-30061

              Plaintiff-Appellee,                D.C. No. CR-08-38-M-DWM

  v.
                                                 MEMORANDUM *
DONALD JOSEPH SCHWINDT,

              Defendant-Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    David W. Molloy, District Judge, Presiding

                              Submitted May 4, 2010 **
                                Seattle, Washington

Before: WARDLAW and GOULD, Circuit Judges, and MILLS, *** District Judge.

       Donald Joseph Schwindt appeals his conviction and sentence for being a

felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We have


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Richard Mills, United States District Judge for the
Central District of Illinois, sitting by designation.
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Schwindt asserts that 18 U.S.C. § 922(g)(1) is unconstitutional in the wake

of District of Columbia v. Heller, 128 S. Ct. 2783 (2008). However, the Supreme

Court stated in Heller that its ruling did not alter the longstanding prohibitions on

possession of firearms by felons. See id. at 2816-17. Furthermore, we recently

held that Heller did not affect the constitutionality of 18 U.S.C. § 922(g)(1). See

United States v. Vongxay, 594 F.3d 1111, 1114-18 (9th Cir. 2010). Therefore, 18

U.S.C. § 922(g)(1) is not unconstitutional on its face.

      Schwindt also argues that the statute is unconstitutional because it is applied

irregularly. The statute relies upon state felony convictions, and the states classify

felony offenses differently. However, this argument was also rejected in Vongxay.

594 F.3d at 1118-19.

      The district court did not commit error in finding that Schwindt was subject

to a base offense level of 20 because he illegally possessed a firearm after a felony

conviction for “a crime of violence.” See U.S.S.G. § 2K2.1(a)(4)(A). For the

conviction to be counted, it must have either been imposed within fifteen years of

the instant offense or resulted in a term of imprisonment that extended into the

fifteen year period. See U.S.S.G. § 4A1.2(e)(1). The relevant dispute at




                                           2
sentencing was whether Schwindt discharged an Oregon burglary sentence in 1992

or 1996. Documents from the State of Oregon gave conflicting dates.

      The district court heard testimony from the probation officer regarding the

discrepancies, which included information obtained by telephone from Oregon

Department of Corrections personnel. Hearsay testimony may be considered by

the sentencing court, as long as the information has sufficient indicia of reliability

to support its probable accuracy. See U.S.S.G. § 6A1.3(a). The testimony of the

probation officer was sufficiently reliable.

      Relying upon the testimony of the probation officer and the documents

submitted, the district court made a factual finding that Schwindt discharged his

burglary sentence in 1996. Although Schwindt disagrees with the court’s final

determination, he cannot show that the court committed clear error in making its

finding. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

      Schwindt next argues that the district court erred by enhancing his sentence

for obstruction of justice, and by finding him ineligible for an acceptance of

responsibility reduction. Schwindt escaped from custody less than a week before

his sentencing hearing, and the Probation Office added an addendum to the

presentence report (PSR) discussing the escape.




                                           3
      Schwindt objected to the PSR addendum, generally denying that he

escaped. Schwindt alleges that the district court simply adopted the findings of the

PSR, without forcing the government to present evidence of the escape. The

government bears the burden of proving facts at sentencing that will enhance a

sentence, and the finding must be shown by a preponderance of the evidence. See

United States v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994).

      The district court recounted that it was immediately notified of Schwindt’s

escape by the United States Marshals Service, and the district court related the

details of the escape. Schwindt’s trial counsel was given the opportunity to rebut

the information, but again asserted a blanket objection to the allegation of escape.

The information regarding the escape conveyed to the district court by the

Marshals Service had sufficient indicia of reliability to support its probable

accuracy. See United States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001), U.S.S.G.

§ 6A1.3(a). Therefore, the district court did not err in finding that Schwindt

escaped.

      In any event, even if the district court erred in not taking evidence, any error

was harmless. See United States v. Beng-Salazar, 452 F.3d 1088, 1095-96 (9th

Cir. 2006). Against the advice of counsel, Schwindt admitted to the escape during

allocution and apologized to the district court for his actions. Therefore, the


                                           4
district court did not err in imposing an obstruction of justice enhancement

pursuant to U.S.S.G. § 3C1.1.

      Nor did the district court err in denying adjustment for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1. Except in extraordinary

circumstances, an enhancement for obstruction of justice is inconsistent with a

finding of acceptance of responsibility. See U.S.S.G. § 3E1.1 cmt. n. 4. Schwindt

fails to demonstrate any extraordinary circumstances that would permit the three-

level reduction for acceptance of responsibility.

      AFFIRMED.




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