                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 18-30055
          Plaintiff-Appellee,
                                                  D.C. No.
                  v.                        9:17-cr-00025-DLC-1

 DAVID PRIEN-PINTO,
        Defendant-Appellant.                       OPINION


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

                  Submitted December 7, 2018*
                      Seattle, Washington

                        Filed March 12, 2019

   Before: William A. Fletcher and Jay S. Bybee, Circuit
       Judges, and Larry A. Burns,** District Judge.

                       Opinion by Judge Bybee



    *
     The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
    **
       The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
2                UNITED STATES V. PRIEN-PINTO

                            SUMMARY***


                            Criminal Law

    Affirming a sentence, the panel held that the strict-
liability enhancement of U.S.S.G. § 2K2.1(b)(4), for the
commission of a crime with a stolen firearm, is constitutional.

    Joining ten other circuits, the panel reaffirmed the holding
of United States v. Goodell, 990 F.3d 497 (9th Cir. 1993), that
the lack of a mens rea requirement in § 2K2.1(b)(4) does not
violate due process. The panel wrote that subsequently-
issued Application Note 8(B), directing courts not to impose
a mens rea requirement, served as confirmation of Goodell’s
analysis of the plain language and legislative history of
the enhancement. Further, the Supreme Court’s Sixth
Amendment jurisprudence requiring that all facts leading to
a sentencing enhancement beyond the statutory maximum be
proven to a jury did not overrule the long-settled position that
the Fifth Amendment permits a sentencing enhancement for
possession of a stolen firearm to apply on a strict-liability
basis.




    ***
        This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. PRIEN-PINTO                   3

                         COUNSEL

John Rhodes, Assistant Federal Defender; Anthony R.
Gallagher, Federal Defender; Federal Defenders of Montana,
Missoula, Montana; for Defendant-Appellant.

Timothy A. Tatarka, Assistant United States Attorney; Kurt
G. Alme, United States Attorney; United States Attorney’s
Office, Billings, Montana; for Plaintiff-Appellee.


                         OPINION

BYBEE, Circuit Judge:

    We are asked to review the vitality of our 1993 holding
that the Sentencing Guidelines may constitutionally impose
a strict-liability enhancement where a defendant committed
a crime with a stolen firearm. See United States v. Goodell,
990 F.2d 497 (9th Cir. 1993). Since that time, the Supreme
Court has issued a number of opinions recasting the role the
Guidelines play in a district court’s sentencing decision. We
conclude that none of these decisions affect Goodell. In
holding once more that the strict-liability enhancement of
§ 2K2.1(b)(4) of the Sentencing Guidelines is constitutional,
we join all ten of the other regional circuit courts.

                               I

    David Prien-Pinto was convicted in Montana state court
in 2014 of felony assault on a peace officer and burglary and
sentenced to a term in state prison. He was released on parole
in March 2016. After his release, a confidential source
alerted a joint task force of federal and local law enforcement
4             UNITED STATES V. PRIEN-PINTO

officers that Prien-Pinto was selling narcotics out of his home
in Missoula. In September 2016, officers raided the home
and arrested Prien-Pinto on marijuana and methamphetamine
charges. Shortly after, Prien-Pinto’s wife reported to local
police that she had hidden a Taurus Model 94 .22 caliber
revolver (“the firearm”) at Prien-Pinto’s instruction. Prien-
Pinto admitted to possessing the firearm and told police that
a friend had given him the firearm as payment for a marijuana
debt.

    Police traced the firearm’s serial number and determined
that it had been stolen the previous summer from its owner in
Kalispell, about 120 miles north of Missoula. The owner
identified the firearm and told police it had been taken from
the glove compartment of his vehicle during a break-in. The
owner denied knowing Prien-Pinto.

    Montana authorities held Prien-Pinto on a parole
violation. He has remained in state custody since his arrest,
serving a prison sentence on various state charges. In August
2017, a federal grand jury indicted Prien-Pinto on one count
of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). He pleaded guilty, without a plea
agreement, in November 2017.

    The district court sentenced Prien-Pinto to 36 months’
imprisonment: 18 months to be served concurrently to his
Montana state sentence, and 18 months to be served
consecutively in federal custody. In calculating Prien-Pinto’s
Guidelines offense level, the district court applied a two-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) because
Prien-Pinto’s crime involved a stolen firearm. Prien-Pinto
objected to this enhancement, arguing that nothing in the
record suggested he knew the firearm was stolen and that
              UNITED STATES V. PRIEN-PINTO                  5

application of the enhancement without a mens rea would
violate his Fifth Amendment rights, or alternatively, the
federal statutes criminalizing possession of a stolen firearm.
The district court noted that “the facts are pretty compelling
that Mr. Prien-Pinto did not have any knowledge that this
firearm had been stolen.” However, it held that Application
Note 8(B) in the Commentary following
§ 2K2.1(b)(4)—which provides that the enhancement applies
“regardless of whether the defendant knew or had reason to
believe that the firearm was stolen”—was “not ambiguous.”
It thus applied the enhancement but invited us, on the record,
to review the constitutionality of § 2K2.1(b)(4) and the
Application Note.

                              II

    The constitutionality of U.S.S.G. § 2K2.1(b)(4)’s strict-
liability enhancement is the only issue before us on appeal.
We review a claim that the Sentencing Guidelines are
unconstitutional de novo. United States v. Padilla-Diaz,
862 F.3d 856, 860 (9th Cir. 2017).

                              A

    All sentencing proceedings begin with the district court’s
calculations of the applicable Guidelines range. See Gall v.
United States, 552 U.S. 38, 49 (2007). Section 2K2.1
provides the offense levels for crimes like Prien-Pinto’s,
which involve unlawful receipt, possession, or transportation
of firearms.      Paragraph (b) provides a number of
enhancements that increase the base offense level for firearm
crimes, including this provision in subparagraph (4): “If any
firearm (A) was stolen, increase by 2 levels; or (B) had an
altered or obliterated serial number, increase by 4 levels.”
6             UNITED STATES V. PRIEN-PINTO

U.S.S.G. § 2K2.1(b)(4). In the Commentary section
following § 2K2.1, Application Note 8(B) provides:
“Knowledge or Reason to Believe.—Subsection (b)(4)
applies regardless of whether the defendant knew or had
reason to believe that the firearm was stolen or had an altered
or obliterated serial number.” U.S.S.G § 2K2.1, App.
Note 8(B). In other words, this Application Note directs
courts to apply § 2K2.1(b)(4)’s enhancements on a strict
liability basis and not to read a mens rea requirement into the
text of the provision.

    Application Notes are not formally part of the Guidelines,
but serve to “interpret[]” and “explain[]” the Guidelines for
district courts. Stinson v. United States, 508 U.S. 36, 38
(1993). Like the Guidelines themselves, the Application
Notes are drafted by the Sentencing Commission and may be
revised annually. See id. at 41, 45. However, Congress lacks
the power to modify or disapprove of Application Notes, as
it may Guidelines. Id. at 40. The Supreme Court told us in
Stinson that an Application Note “that interprets or explains
a guideline is authoritative unless it violates the Constitution
or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” Id.; see also id. at
42–43 (“Commentary which functions to interpret a guideline
or explain how it is to be applied controls, and if failure to
follow, or a misreading of, such commentary results in a
sentence selected from the wrong guideline range, that
sentence would constitute an incorrect application of the
sentencing guidelines.” (internal citations, punctuation, and
alterations omitted)). The Court also analogized the
Sentencing Commission’s use of Application Notes to an
agency’s interpretation of its own legislative rules, and thus
directed courts to apply Application Notes with the same
force as other such interpretations. Id. at 44–45. Thus, we
              UNITED STATES V. PRIEN-PINTO                    7

ascribe somewhat less legal weight to the Application Notes
than to the Guidelines proper: if the Guideline and
Application Note are inconsistent, the Guideline prevails. See
id. at 38.

    After publishing Stinson in 1993, the Supreme Court
issued a series of opinions that have dramatically altered the
role the Guidelines play in sentencing. Most significantly,
the Court struck down the federal sentencing statute making
the Guidelines mandatory, finding it inconsistent with the
Sixth Amendment. United States v. Booker, 543 U.S. 220,
245 (2005). However, we and the Supreme Court have
continued to apply the holding of Stinson in the years
following Booker. See, e.g., Freeman v. United States,
564 U.S. 522, 529 (2011) (citing Stinson, 508 U.S. at 38)
(“Guidelines commentary is authoritative[.]”); United States
v. Thornton, 444 F.3d 1163, 1165 n.3 (9th Cir. 2006)
(“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” (internal
quotation marks omitted)). We thus follow Stinson in
considering whether the district court properly applied
§ 2K2.1(b)(4) and Application Note 8(B) when calculating
Prien-Pinto’s sentence.

                               B

    We considered and rejected a Fifth Amendment due
process challenge to the lack of a mens rea requirement in
§ 2K2.1(b)’s enhancement for a stolen firearm in Goodell. At
that time, the stolen-firearm enhancement was codified at
§ 2K2.1(b)(2), and the Sentencing Commission had not yet
drafted Application Note 8(B), which first appeared in the
8              UNITED STATES V. PRIEN-PINTO

Guidelines in 2007. Compare U.S.S.G. § 2K2.1 (1990) with
U.S.S.G. § 2K2.1 (2007).

    Working without the “authoritative,” Stinson, 508 U.S. at
38, weight of this Application Note, we reached the result it
now prescribes through sound construction of the Guidelines.
We first scrutinized“[t]he plain language” of § 2K2.1(b) and
found that it “does not require [a mens rea.]” Goodell,
990 F.2d at 498. Second, we examined the drafting history to
determine whether the Guideline’s text was a “deliberate”
exception to the “rule of . . . Anglo-American criminal
jurisprudence” that a penalty requires a mens rea. See id. at
498–99. Our review found that the Sentencing Commission
“promulgated [the enhancement] on the premise that ‘stolen
firearms are used disproportionately in the commission of
crimes.’” Id. at 499 (quoting United States v. Mobley,
956 F.2d 450, 454 (3d Cir. 1992)). Because the Fifth
Amendment permits a regulatory statute in the interest of
public safety to provide for criminal liability in the absence
of mens rea, United States v. Freed, 401 U.S. 601, 607–09
(1971), and because an enhancement for possession of a
stolen firearm is rationally related to the goal of crime
prevention, Goodell, 990 F.2d at 499 (citing Mobley,
956 F.2d at 454) (noting that stolen firearms are
disproportionately used in the commission of crimes), we
held that there was no Fifth Amendment violation. Id. In the
end, strict liability “reflects the greater culpability of an ex-
felon possessing a stolen weapon.” Id. at 501.

    Goodell’s analysis of the plain language and legislative
history of the enhancement seems to foreclose Prien-Pinto’s
argument that Application Note 8(B) is “a plainly erroneous
reading” of § 2K2.1(b)(4). See Stinson, 508 U.S. at 38.
Through traditional techniques of construction, we had been
              UNITED STATES V. PRIEN-PINTO                   9

reading this enhancement to apply without a mens rea for
fourteen years before the Sentencing Commission began
directing us to do so. Application Note 8(B) simply serves as
confirmation that Goodell’s reading has always been the
correct one.

                              C

    Prien-Pinto raises several arguments that Goodell does
not control this case. He first argues that the Supreme
Court’s decision in Booker overruled Stinson,
and—apparently—all other pre-Booker decisions about the
constitutionality of the Guidelines, including Goodell.
Stinson’s holding that the Application Notes carry authority
akin to an agency’s interpretation of its legislative rules, he
avers, is now incorrect, and courts would thus violate the
Administrative Procedure Act by giving the Application
Notes the force of law because they are not promulgated
through notice-and-comment rulemaking.

    This argument misunderstands the case law. We relied
upon neither Stinson nor the Application Notes in deciding in
Goodell that the stolen-firearm enhancement does not carry
a mens rea; rather, we based that holding on the text of
§ 2K2.1(b) alone. Thus, an overruling of Stinson would not
abrogate our holding in Goodell. Moreover, Stinson has not
been overruled. The Supreme Court, post-Booker, continues
to cite its holding regarding the Application Notes as positive
law—as do we. See, e.g., Freeman, 564 U.S. at 529;
Thornton, 444 F.3d at 1165 n.3.

   Second, Prien-Pinto argues that Goodell is no longer good
law because that decision relied on McMillan v.
Pennsylvania, 477 U.S. 79 (1986). McMillan established a
10            UNITED STATES V. PRIEN-PINTO

three-factor test to determine whether a sentencing
enhancement factor violates the Fifth Amendment. Goodell,
990 F.2d at 499–500 (citing McMillan, 477 U.S. at 87–88).
Fourteen years after McMillan, the Supreme Court interpreted
the Sixth Amendment to require that sentencing
enhancements beyond the statutory maximum be based on
facts proven to a jury beyond a reasonable doubt. Apprendi
v. New Jersey, 530 U.S. 466, 486–87, 490 (2000). The Court
subsequently clarified that Apprendi did not disturb the
McMillan due process standard in Harris v. United States,
536 U.S. 545, 563 (2002). However, eleven years later, the
Court overruled Harris and questioned the “vitality, if not
validity” of McMillan. Alleyne v. United States, 570 U.S. 99,
106 (2013); see also id. at 118 (Sotomayor, J., concurring)
(expressing a view that McMillan was “wrongly decided”).
Prien-Pinto argues that if McMillan is no longer valid,
Goodell cannot be either.

     We need not reach the question of McMillan’s continued
vitality because, when we decided the portion of Goodell
which controls this appeal, we neither relied on nor engaged
with McMillan. Only after determining that the stolen-
firearm enhancement did not carry a mens rea and that this
strict-liability enhancement did not violate the Fifth
Amendment did we turn to Mr. Goodell’s separate argument
that the enhancement was invalid under the standard of
McMillan. Goodell, 990 F.2d at 499. In fact, we even
transitioned into the McMillan portion of our opinion with the
phrase “[t]he scienter issue aside . . . .” Id. Our subsequent
analysis of whether the enhancement altered the statutory
maximum penalty for Goodell’s crime is not relevant to
Prien-Pinto’s appeal.
              UNITED STATES V. PRIEN-PINTO                   11

     Third, Prien-Pinto urges us to distinguish Goodell because
there, unlike here, the government and the defendant
stipulated to the fact that the defendant did not know the
firearm he possessed was stolen. Id. at 498. However,
nothing in our analysis or holding in Goodell relied on this
stipulation. Moreover, the district court here stated on the
record at sentencing that “the facts are pretty compelling that
Mr. Prien-Pinto did not have any knowledge that this firearm
had been stolen,” a finding we consider of equivalent force to
a stipulation.

    Fourth, Prien-Pinto argues that § 2K2.1(b)(4)’s strict-
liability enhancement is in tension with the federal statute
criminalizing possession of a stolen firearm, which does
require a mens rea. See 18 U.S.C. § 922(j) (making it a crime
to possess a stolen firearm or ammunition while “knowing or
having reasonable cause to believe that the firearm or
ammunition was stolen”). Because Application Note 8(B)
may not stand if it “violates . . . a federal statute,” Stinson,
508 U.S. at 38, Prien-Pinto avers that the statute’s
requirement of a mens rea disallows the Guidelines from
imposing a strict-liability penalty for the same conduct. See
United States v. LaBonte, 520 U.S. 751, 757 (1997) (holding
that where an Application Note and the plain language of a
federal statute are “at odds,” the Application Note must “must
give way”). However, we considered and rejected this
statutory argument in United States v. Ellsworth, 456 F.3d
1146, 1150–51 (9th Cir. 2006), which we published after the
Supreme Court’s decision in Booker.

   In Ellsworth, the defendant argued, like Prien-Pinto, that
§ 2K2.1(b)(4) was “at odds with Congress’ plain language as
expressed in 18 U.S.C. § 922(j).” Id. at 1151 (internal
quotation marks omitted). We, however, distinguished
12              UNITED STATES V. PRIEN-PINTO

between § 922(j) as “an independent basis for criminal
liability” and § 2K2.1(b)(4) as a mere “enhancement” applied
only after liability has been established for the separate crime
of being a felon in possession of a firearm, describing the
provisions as only “superficially similar.” See id. The
enhancement, we reasoned, does not establish culpability for
possession of a stolen firearm, but increases the penalty for a
“small[] and distinct category of persons” who “may not
legitimately possess any firearm,” stolen or not: convicted
felons. Id. (emphasis in original); see also Goodell, 990 F.2d
at 501 (describing the “greater culpability” of a felon who
possesses a stolen firearm). The provisions are thus
fundamentally different, and we cannot assume that Congress
intended to include an unwritten mens rea for the Guidelines
enhancement because it included a written one for the
statutory offense. Guessing at Congress’s intent where the
text is clear on its face is a dangerous game, and one that we
have chosen not to play. Ellsworth thus has foreclosed Prien-
Pinto’s statutory argument.

    Finally, Prien-Pinto argues that Booker represented a “sea
change” which fundamentally altered due process
jurisprudence on the Guidelines and compels a re-evaluation
of Goodell. He relies on a lone opinion from the Eastern
District of New York, United States v. Handy, 570 F. Supp.
2d 437 (E.D.N.Y. 2008), the logic of which has been rejected
by the Second, Third, Sixth, and Eleventh Circuits.1 See
United States v. Thomas, 628 F.3d 64, 72 (2d Cir. 2010) (re-
affirming a pre-Booker decision holding the lack of a mens
rea requirement to § 2K2.1(b)(4) valid and noting “respectful
disagreement” with Handy); see United States v. Stokes,

     1
       The government did not appeal Handy to the Second Circuit; thus,
that court did not have an opportunity to directly review the decision.
               UNITED STATES V. PRIEN-PINTO                   13

621 F. App’x 316, 320 (6th Cir. 2015) (rejecting Handy);
United States v. Fields, 608 F. App’x 806, 812 (11th Cir.
2015) (same); United States v. Black, 386 F. App’x 238, 241
(3d Cir. 2010) (same).

     Further, although the First, Fourth, Fifth, Seventh, Eighth,
and Tenth Circuits have not addressed the Handy opinion,
each has continued to apply § 2K2.1(b)(4)’s strict-liability
enhancement in the years after Booker. See United States v.
Gonzalez, 857 F.3d 46, 55–56 (1st Cir. 2017) (“[U]nlike a
mens-rea-less criminal statute, the Guidelines may compound
the punishment for the offense, but they fall far short of
criminalizing apparently innocent conduct. . . . The history of
the Guideline itself confirms that the omission was
intentional[.]” (internal quotation marks and alteration
omitted)); United States v. Taylor, 659 F.3d 339, 344 (4th
Cir. 2011) (“[I]t is not unusual to punish individuals for the
unintended consequences of their unlawful acts.” (quoting
Dean v. United States, 556 U.S. 568, 575 (2009))); United
States v. Perez, 585 F.3d 880, 883 (5th Cir. 2009) (“This
court has continually enforced the clear and unambiguous
language of § 2K2.1(b)(4) and its strict liability standard.”);
United States v. Statham, 581 F.3d 548, 553 (7th Cir. 2009)
(applying § 2K2.1(b)(4)’s parallel strict-liability enhancement
for use of a firearm with an altered or obliterated serial
number); United States v. Bates, 584 F.3d 1105, 1109 (8th
Cir. 2009) (applying Application Note 8(B) to impose the
strict-liability enhancement); United States v. Ellis, 351 F.
App’x 307, 309 (10th Cir. 2009) (“We like other circuits have
long and unanimously held that Section 2K2.1(b)(4) lacks a
scienter requirement.”).
14             UNITED STATES V. PRIEN-PINTO

                               III

    We join the unanimous ranks of these ten circuits and
decline to reverse our longstanding precedent. We fail to
understand how the Supreme Court’s Sixth Amendment
jurisprudence requiring that all facts leading to a sentence
enhancement beyond the statutory maximum be proven to a
jury overrules the long-settled position that the Fifth
Amendment permits a sentencing enhancement for possession
of a stolen firearm to apply on a strict-liability basis. For the
foregoing reasons, the judgment of the district court is
AFFIRMED.
