                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          DEC 03 2014

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

UNITED STATES OF AMERICA,                        No. 13-30366

              Plaintiff - Appellee,              D.C. No. 1:13-cr-00008-DWM-1

  v.
                                                 MEMORANDUM*
DUAINE WESTON BOWDEN,

              Defendant - Appellant.


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

                    Argued and Submitted November 19, 2014
                                Portland, Oregon

Before: CLIFTON, M. SMITH, and HURWITZ, Circuit Judges.

       Duaine Weston Bowden appeals his conviction and 33-month sentence for

possession of stolen firearms, 18 U.S.C. § 922(j). We affirm.

       Bowden’s appeal raises three issues, and we consider each in turn. First,

Bowden asserts that the Government did not establish by a preponderance of the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
evidence that he possessed eight stolen firearms, and that the district court abused

its discretion in applying a four-level upward adjustment on that basis pursuant to

U.S.S.G. § 2K2.1(b)(1)(B). Based on our review of the record, we conclude that

there was sufficient evidence before the sentencing court on this issue, and that the

court therefore did not abuse its discretion in applying the four-level upward

adjustment.

      Second, Bowden alleges that his due process rights were violated because

his sentence was based in part on facts for which there were no indicia of

reliability. It is well-established that a defendant “has a due process right not to be

sentenced on the basis of materially incorrect information.” United States v. Petty,

982 F.2d 1365, 1369 (9th Cir. 1993). Thus, “[w]hile hearsay statements may be

considered at sentencing, due process requires that such statements be corroborated

by extrinsic evidence.” United States v. Ponce, 51 F.3d 820, 828 (9th Cir. 1995)

(per curiam). To make a successful due process claim, Bowden “must establish

[that] the challenged information is (1) false or unreliable, and (2) demonstrably

made the basis for the sentence.” United States v. Vanderwerfhorst, 576 F.3d 929,

935–36 (9th Cir. 2009) (quoting United States v. Ibarra, 737 F.2d 825, 827 (9th

Cir. 1984)). Even if we assume that Bowden has met his burden with respect to the

first element, his challenge fails because our reading of the record as a whole


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indicates to us that the focus of the sentencing court’s comments and analysis was

on the conduct to which Bowden had admitted, not on the allegations associated

with the dismissed counts. Therefore, we conclude that the unproved conduct was

not “demonstrably made the basis for the sentence.” Vanderwerfhorst, 576 F.3d at

935–36 (quotation omitted).

      Third, Bowden asserts that the within-Guidelines sentence of 33 months that

the district court imposed was substantively unreasonable. On appeal, we review a

sentence for substantive reasonableness under the abuse of discretion standard.

Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Ressam, 679 F.3d

1069, 1087 (9th Cir. 2012) (en banc). “Although we do not automatically presume

reasonableness for a within-Guidelines sentence, in the overwhelming majority of

cases, a Guidelines sentence will fall comfortably within the broad range of

sentences that would be reasonable in the particular circumstances.” United States

v. Laurienti, 731 F.3d 967, 976 (9th Cir. 2013) (citation and internal quotation

marks omitted). Where, as here, “the district court considered the specific facts

presented by [the] case and . . . its sentence was consistent with its assessment of

these facts,” we will not overturn a sentence as substantively unreasonable. United




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States v. Apodaca, 641 F.3d 1077, 1082 (9th Cir. 2011). Bowden’s substantive

unreasonableness challenge fails.1

      AFFIRMED.




      1
         At oral argument, Bowden asserted that his sentence was impermissible as
a consequence of the indeterminate nature of his state sentence, combined with the
fact that the federal sentence imposed on him was made consecutive to that state
sentence. As counsel conceded, however, this argument was not briefed. It is
therefore waived. See McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009)
(raising an issue at oral argument is insufficient to avoid waiver if it was not raised
“clearly and distinctly” in the opening brief).

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