                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          June 3, 2019

                                                                          Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-3189

 STORM MICHAEL BELLAMY,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                          (D.C. No. 2:17-CR-20020-CM-1)
                       _________________________________

Michael L. Belancio of Foland, Wickens, Roper, Hofer & Crawford, P.C., Kansas City,
Missouri, for the Defendant – Appellant.

Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States
Attorney and Carrie N. Capwell, Assistant United States Attorney, District of Kansas, on
the brief), Kansas City, Kansas, for the Plaintiff – Appellee.
                         _________________________________

Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.
                  _________________________________

MATHESON, Circuit Judge.
                   _________________________________

      In fall 2016, agents with the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”) began investigating Storm Michael Bellamy, a convicted felon,

for suspected methamphetamine distribution. On the morning of October 5, 2016,
Mr. Bellamy’s housemate ordered him to vacate the home. Twelve hours later, ATF

agents executed a warrant to search the premises. In Mr. Bellamy’s former bedroom,

they discovered his personal effects, a rifle with a loaded large-capacity magazine

attached, and a second large-capacity magazine nearby.

      Mr. Bellamy pled guilty to being a felon in possession of a firearm. The

district court found that he possessed the rifle and the large-capacity magazines. It

applied United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)

§ 2K2.1(a)(4)(B), which establishes a base offense level of 20 when a convicted felon

possesses a semiautomatic firearm with a large-capacity magazine that is either

attached or in close proximity to the firearm. U.S.S.G. § 2K2.1(a)(4)(B); see id.

cmt. n.2. The court sentenced Mr. Bellamy to 40 months in prison.

      Mr. Bellamy challenges the procedural reasonableness of his sentence.

Because he was ejected from the house, he argues he did not possess the rifle when

agents seized it on the evening of October 5. He also claims there was insufficient

evidence to show that the rifle he possessed earlier that morning had a large-capacity

magazine attached or in close proximity to it. Mr. Bellamy thus argues the district

court erred in assigning him a base offense level of 20 under § 2K2.1(a)(4)(B).

      The record contains ample support for the district court’s finding that Mr.

Bellamy possessed the rifle and the large-capacity magazines. Accordingly, the court

did not abuse its discretion in sentencing him. Exercising jurisdiction under 28

U.S.C § 1291 and 18 U.S.C. § 3742(a), we affirm.



                                           2
                                    I. BACKGROUND

                                A. U.S.S.G. § 2K2.1(a)(4)(B)

       U.S.S.G. § 2K2.1(a) lists base offense levels for offenses involving the

unlawful receipt, possession, or transportation of firearms or ammunition. The

minimum base offense level for a felon in possession of a firearm is 14. U.S.S.G.

§ 2K2.1(a)(1)(6). But under § 2K2.1(a)(4)(B), the base offense level is 20 if:

                the (i) offense involved a . . . semiautomatic firearm that is
                capable of accepting a large capacity magazine; . . . and
                (ii) defendant . . . was a prohibited person at the time the
                defendant committed the instant offense . . . .

       The commentary to this Guidelines provision specifies that a “‘prohibited

person’ means any person described in 18 U.S.C. § 922(g),” which includes all

convicted felons. U.S.S.G. § 2K2.1 cmt. n.3.1 The commentary also explains:

                [A] “semiautomatic firearm that is capable of accepting a
                large capacity magazine” means a semiautomatic firearm
                that has the ability to fire many rounds without reloading
                because at the time of the offense (A) the firearm had
                attached to it a magazine or similar device that could
                accept more than 15 rounds of ammunition; or (B) a
                magazine or similar device that could accept more than 15
                rounds of ammunition was in close proximity to the
                firearm.

Id. cmt. n.2.




       1
           The parties do not dispute Mr. Bellamy’s status as a “prohibited person.”
                                              3
                                     B. Factual History2

          Mr. Bellamy had been convicted of several felonies before the events leading

to this case. In September 2016, he moved into a home occupied by Robert Spalding,

Jr. Soon after, the ATF began investigating Mr. Bellamy for suspected distribution

of methamphetamine. As part of this investigation, ATF agents searched trash bins at

the house and discovered drug paraphernalia, mail with Mr. Bellamy’s name on it,

and an empty box of Wolf .223 ammunition, which can be used in a 5.56-caliber

rifle.3

          On the morning of October 5, 2016, Mr. Spalding “physically ejected” Mr.

Bellamy from the house.4 ROA, Vol. 2 at 49-50. Approximately 12 hours later, ATF




          2
         The following facts are drawn from Mr. Bellamy’s PSR and the transcripts of
his sentencing and change of plea hearings. The parties do not dispute these facts.
See Aplt. Br. at 7 (noting that “[t]here is very little factually in dispute in this case”
and that “Mr. Bellamy and the Government stipulated the sentencing facts were true
without the need to present evidence”); ROA, Vol. 2 at 35 (prosecutor’s statement
that the Government “pretty much stipulated to most of the facts that . . . [are]
contained in the PSR”).
          3
        This firearm is sometimes described as a 5.56-mm rifle. Because the record
materials refer to the firearms in this case using the caliber designation, we use that
terminology also.
          4
        The record shows that Mr. Bellamy sold methamphetamine from the house
and that Mr. Spalding instructed him to stop. At sentencing, the Government claimed
that “Mr. Spalding was tired of – of Mr. Bellamy living there” and “didn’t want him
there anymore.” ROA, Vol. 2 at 54. But beyond this, the record does not explain the
reason for the ejection.

                                             4
agents executed a search warrant at the residence.5 Mr. Bellamy was not present

during the search. When the agents arrived at the house, they discovered Mr.

Spalding hiding in the attic. Mr. Spalding informed them he had ejected Mr.

Bellamy, who previously occupied two bedrooms on the first floor. He stated Mr.

Bellamy had given him a Sig Sauer .380 handgun but had later taken it back. He said

Mr. Bellamy used methamphetamine regularly and stored methamphetamine and a

rifle in his closet. Mr. Spalding also said Mr. Bellamy had installed a video

surveillance system to record video throughout the house.

      In Mr. Bellamy’s room, the agents found his birth certificate and an unloaded

large-capacity magazine, which was stored in a dresser drawer. They also discovered

a Delaware Machinery 5.56-caliber rifle in Mr. Bellamy’s closet. The rifle had one

round of ammunition in the chamber and an additional 19 rounds in an attached

large-capacity magazine.

      Elsewhere in the house, the agents found plastic baggies, drug paraphernalia,

more than 100 rounds of assorted ammunition, the Sig Sauer handgun, and a firearms

case. They also recovered a Night Owl DVR surveillance system. Video from this

system showed Mr. Bellamy carrying a rifle on September 21, 2016, but did not show

whether a high-capacity magazine was attached.6 The recording also depicted several


      5
          This timing appears coincidental. The record provides no indication the ATF
agents knew Mr. Bellamy had been ejected or planned their search to coincide with
his absence.
        6
          At the sentencing hearing, the Government conceded that the video was
“very grainy” and that “you can’t tell if there’s a large capacity magazine attached to
[the rifle].” ROA, Vol. 2 at 44.
                                           5
visitors entering and exiting the house between Mr. Bellamy’s ejection and the ATF

search. At least one visitor appeared to carry something into the house.

      DNA and fingerprint tests performed after the search revealed no evidence

linking Mr. Bellamy to the magazines or ammunition.

                                C. Procedural History

      A grand jury charged Mr. Bellamy with being a felon in possession of a

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

      Mr. Bellamy pled guilty to the charge in the indictment without a plea

agreement. At his change of plea hearing, he emphasized that he was “admitting to

the conduct in the indictment”—namely, “that he possessed [two] firearms, that they

were . . . inter-mingled with his possessions.” But he did not admit to possession of

any large-capacity magazines. ROA, Vol. 2 at 21-22.

      After Mr. Bellamy’s guilty plea, the United States Probation Office prepared a

Presentence Investigation Report (“PSR”). It stated that Mr. Bellamy possessed a

semiautomatic firearm capable of accepting a large-capacity magazine because the

rifle recovered from Mr. Bellamy’s closet had an attached magazine that held more

than 15 rounds of ammunition. The PSR applied U.S.S.G. § 2K2.1(a)(4)(B), which

sets a base offense level of 20 when a felon in possession offense involves a large-

capacity semiautomatic firearm. It then subtracted three levels for acceptance of

responsibility, leaving Mr. Bellamy’s total offense level at 17. The PSR assigned a




                                           6
criminal history category of IV and calculated a Guidelines sentence range of 37 to

46 months.7

      Mr. Bellamy objected to the PSR in a sentencing memorandum, arguing there

was insufficient evidence to apply § 2K2.1(a)(4)(B). Although he did “not contest

that one of the firearms at issue was loaded with a high capacity magazine at the time

of seizure,” he claimed the Government had “no evidence that the magazine was

attached or in close proximity . . . at the last time that Mr. Bellamy could have

possibly had dominion and control over the premises, or the weapon.” ROA, Vol. 1

at 24. He also alleged that “at least two people, who had grudges against [him] were

. . . in the premises during the twelve hour period . . . before law enforcement

conducted the search,” and he suggested that these individuals might have “move[d]

objects within the demised premises.” Id. at 27 (footnote omitted). He thus asserted

the Government could not show by a preponderance of the evidence that “there were

large capacity magazines either loaded into or within close proximity to one of the

firearms” when he possessed the rifle. Id. at 26.

      At sentencing, the district court concluded “it’s more likely . . . that this

firearm and the magazine were attached at the time that [Mr. Bellamy was at the

house], and at the time [he] left, that was the condition of the firearm and the

magazine.” ROA, Vol. 2 at 61-62. It found the Government had met its burden of


      7
         If the PSR had not applied § 2K2.1(a)(4)(B), Mr. Bellamy’s total offense
level would have been 12 (a base offense level of 14 under § 2K2.1(a)(1)(6), less two
levels for acceptance of responsibility), and his Guidelines range would have been 21
to 27 months.
                                            7
showing that Mr. Bellamy had possessed a firearm with a large-capacity magazine

attached or in close proximity. The court overruled Mr. Bellamy’s objections and

found that “the base offense level was accurately calculated in the presentence

investigation report.” Id. at 62. It then adopted the PSR’s calculations and sentenced

Mr. Bellamy to 40 months in prison followed by two years of supervised release. Mr.

Bellamy timely appealed.

                                  II. DISCUSSION

      The record supports the district court’s finding that Mr. Bellamy possessed a

rifle with a large-capacity magazine attached or in close proximity. The court

therefore did not abuse its discretion when it applied U.S.S.G. § 2K2.1(a)(4)(B).

                    A. Standard of Review and Legal Background

      We review criminal sentences for reasonableness, applying an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007); United States v.

Bergman, 599 F.3d 1142, 1150 (10th Cir. 2010). This review “includes both a

procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” United States v. Ortiz-Lazaro, 884 F.3d 1259, 1261 (10th Cir.

2018) (quotations omitted); see also United States v. Sanchez-Leon, 764 F.3d 1248,

1261-62 (10th Cir. 2014).

      A challenge to the application of § 2K2.1(a)(4)(B) contests the sentence’s

procedural reasonableness. See United States v. Arevalo-Magana, 686 F. App’x 559,



                                           8
561-62 (10th Cir. 2017) (unpublished).8 “We review de novo any legal questions in a

district court’s application of the Guidelines, and we review any factual findings for

clear error.” United States v. Serrato, 742 F.3d 461, 468 (10th Cir. 2014) (quotations

omitted); see also United States v. Madkins, 866 F.3d 1136, 1144 (10th Cir. 2017)

(“We review challenges to the imposition of guidelines enhancements for clear error

as to findings of fact and de novo as to questions of law.”). “We defer to the district

court’s application of the Guidelines to the facts.” United States v. Martinez, 512

F.3d 1268, 1275 (10th Cir. 2008).

       Mr. Bellamy does not challenge the district court’s legal interpretation of

§ 2K2.1(a)(4)(B). Rather, he challenges the court’s factual finding that he possessed

a firearm with a large-capacity magazine attached or in close proximity to it. Where

“the district court’s factual finding is itself legally sufficient to support a[n] . . .

enhancement . . . , we may reverse only if the finding is itself clearly erroneous.”

United States v. Shippley, 690 F.3d 1192, 1199 (10th Cir. 2012). Accordingly, we

review Mr. Bellamy’s attack on the district court’s factual finding for clear error. See

Arevalo-Magana, 686 F. App’x at 562-63 (using clear error standard to assess a

district court’s application of § 2K2.1(a)(4)(b)); United States v. Gevedon, 214 F.3d

807, 812 (7th Cir. 2000) (reviewing district court’s finding that defendant possessed




       8
         Although not precedential, we find the reasoning of this unpublished opinion
instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
                                              9
high-capacity weapons and qualified as a “prohibited person” under §

2K2.1(a)(4)(B)(i) for clear error).

      “A finding is clearly erroneous only if it is without factual support in the

record or if, after reviewing all the evidence, we are left with a definite and firm

conviction that a mistake has been made.” Shippley, 690 F.3d at 1199 (brackets and

quotations omitted). “[I]f the district court’s account of the evidence is plausible in

light of the record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it would have weighed

the evidence differently.” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74

(1985). “Where there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” Id. at 574.

      “The facts necessary to calculate the guidelines sentencing range must be

proved by a preponderance of the evidence.” United States v. Flonnory, 630 F.3d

1280, 1285-86 (10th Cir. 2011); U.S.S.G. § 6A1.3, cmt. (“[The] use of a

preponderance of the evidence standard is appropriate . . . in resolving disputes

regarding application of the guidelines to the facts of a case.”). The Government

bears this burden. United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir. 1990). It

must show that “the existence of a fact is more probable than its nonexistence.”

Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508

U.S. 602, 622 (1993).




                                           10
                                       B. Analysis

        The district court’s finding that Mr. Bellamy possessed a semiautomatic

firearm capable of accepting a large-capacity magazine was not clearly erroneous.

   Evidence Supports Application of § 2K2.1(a)(4)(B)

        Mr. Bellamy concedes he possessed the rifle on the morning of October 5,

2016. He also concedes that when the weapon was seized 12 hours later, it had a

large-capacity magazine attached and another one nearby. Accordingly, the only

question is whether it was clearly erroneous for the district court to find by a

preponderance of the evidence that a large-capacity magazine was attached or in

close proximity to the rifle on the morning of October 5. U.S.S.G. § 2K2.1(a)(4)(B);

see Flonnory, 630 F.3d at 1285-86. We conclude it was not.

        During the search, the ATF agents discovered the rifle and its attached

magazine stowed in Mr. Bellamy’s closet—a private and concealed part of the

bedroom. The rifle’s location supports an inference that Mr. Bellamy possessed both

the firearm and its attached magazine before Mr. Spalding ordered him to leave the

home.

        The ATF agents also discovered a second large-capacity magazine stored in

Mr. Bellamy’s dresser drawer. Elsewhere in the room, they found his belongings,

including his birth certificate and credit cards. Storage of the second large-capacity

magazine in a discreet location alongside Mr. Bellamy’s personal effects further

suggests that the large-capacity magazines belonged to him and that he kept them

attached or in close proximity to the rifle.

                                               11
      In addition, several days before the October 5 search, ATF agents searched the

trash outside the house. They discovered paperwork bearing Mr. Bellamy’s name.

They also found an empty box of Wolf .223 ammunition, which could be used in the

large-capacity magazines later found in Mr. Bellamy’s bedroom. This evidence

corroborates that Mr. Bellamy possessed both the rifle and the large-capacity

magazines before the October 5 search.

      It was thus “plausible” for the district court to conclude that the Government

carried its burden. Anderson, 470 U.S. at 574. The court did not clearly err in

finding that Mr. Bellamy possessed the rifle with a large-capacity magazine attached

or in close proximity, and it therefore did not abuse its discretion in assigning a base

offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(B).

   Mr. Bellamy’s Alternative Explanations Do Not Establish Clear Error

      Mr. Bellamy’s alternative explanations for the presence of the large-capacity

magazines in his bedroom are unconvincing. He notes that after Mr. Spalding told

him to leave the house, other individuals entered and exited the premises and

therefore had access to his room. He also claims Mr. Spalding and a woman who

entered the house held grudges against him, implying they might have planted the

magazines in his room to get him in trouble.9




      9
        According to Mr. Bellamy, this woman “was on the premises for at least 15
minutes looking to retrieve $500 from Mr. Bellamy that she claim[ed] he owed her in
relationship to a car deal that had gone awry.” ROA, Vol. 1 at 27.

                                           12
       These theories are implausible. The possibility that someone attached a

magazine to Mr. Bellamy’s rifle and placed another magazine in his dresser drawer

after he was ejected from the house is far less likely than Mr. Bellamy himself

placing the magazines on the rifle and in his drawer. In addition, the record lacks

any evidence that Mr. Spalding or any individuals who visited the house had

forewarning that the search was going to occur.10

       As discussed above, a district court’s “finding is clearly erroneous only if it is

without factual support in the record or if, after reviewing all the evidence, we are

left with a definite and firm conviction that a mistake has been made.” Shippley, 690

at 1199. And “[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S.

at 574. Here, the evidence supported the Government’s position and the court’s

finding. There is no “definite” or “firm” reason to believe the district court erred.

Shippley, 690 at 1199.

                                      *   *        *   *

       The Government needed only to prove by a preponderance of the evidence that

the large-capacity magazines were attached or in close proximity to the rifle at the

time Mr. Bellamy admits he possessed it. And on clear error review, we may not

reverse “[i]f the district court’s account of the evidence is plausible in light of the

record viewed in its entirety.” Anderson, 470 U.S. at 573-74. Here, the facts—a rifle


       10
         In fact, the ATF agents found Mr. Spalding hiding in his attic, which
suggests he was startled by and unprepared for the search.
                                              13
and an attached large-capacity magazine stowed in the bedroom closet, a second

large-capacity magazine cached in the bedroom dresser, and large-capacity

ammunition packaging discovered days before the search—support a plausible

inference that when Mr. Bellamy possessed the rifle on the morning of October 5,

2016, the large-capacity magazines were attached or in close proximity. The court

did not abuse its discretion by assigning Mr. Bellamy a base offense level of 20 under

§ 2K2.1(a)(4)(B).

                                III. CONCLUSION

      We affirm the district court’s judgment.




                                         14
